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Bombay High Court Monthly Digest: February 2024
Amisha Shrivastava
10 March 2024 10:00 AM IST
Nominal Index [Citation 52 – 117]Dr. Ramchandra Bapu Nirmale v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 52Kamath Brothers (Dwarka) & Ors v. Municipal Corporation of Greater Mumbai & Ors. 2024 LiveLaw (Bom) 53Amar Sadhuram Mulchandani v. Directorate of Enforcement and Ors. 2024 LiveLaw (Bom) 54Kangana Ranaut v. State of Maharashtra and Anr. 2024 LiveLaw (Bom) 55ABC and Anr....
Nominal Index [Citation 52 – 117]
Dr. Ramchandra Bapu Nirmale v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 52
Kamath Brothers (Dwarka) & Ors v. Municipal Corporation of Greater Mumbai & Ors. 2024 LiveLaw (Bom) 53
Amar Sadhuram Mulchandani v. Directorate of Enforcement and Ors. 2024 LiveLaw (Bom) 54
Kangana Ranaut v. State of Maharashtra and Anr. 2024 LiveLaw (Bom) 55
ABC and Anr. v. State of Maharashtra and Anr. 2024 LiveLaw (Bom) 56
The Indian Express (P) Ltd. and Ors. v. Dinesh Rane and Ors. 2024 LiveLaw (Bom) 57
Gaurav s/o Ravi Wankhede v. State of Maharashtra 2024 LiveLaw (Bom) 58
Solaris Developers Pvt. Ltd. v. State Bank of India 2024 LiveLaw (Bom) 59
M/s. Chalet Hotels Ltd. v. Bhikan Laxman Deokar and Anr. 2024 LiveLaw (Bom) 60
Bal Asha Trust, Mumbai v. ABC 2024 LiveLaw (Bom) 61
Tushar Tanaji Nimhan & Anr. v. State of Maharashtra 2024 LiveLaw (Bom) 62
Chanda Kochhar v. Central Bureau of Investigation 2024 LiveLaw (Bom) 63
Arvind Kejriwal v. State of Goa 2024 LiveLaw (Bom) 64
Shilpa Gorakh Chavan v. University Grants Commission and Ors. 2024 LiveLaw (Bom) 65
Hyundai Construction Equipment India Pvt. Ltd v. Saumya Mining Limited and Anr. 2024 LiveLaw (Bom) 66
Commissioner of Income Tax v. M/s. HSBC Bank (Mauritius) Ltd. 2024 LiveLaw (Bom) 67
High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 68
Ketan Champaklal Divecha v. DGS Township Pvt. Ltd. & Anr. 2024 LiveLaw (Bom) 69
ABC v. XYZ 2024 LiveLaw (Bom) 70
Emkay Global Financial Services Ltd. v. Assistant Commissioner of Income Tax 2024 LiveLaw (Bom) 71
Bank of Maharashtra. v. Directorate of Revenue Intelligence and Anr. 2024 LiveLaw (Bom) 72
Adv. Pooja Patil v. Deputy Commissioner 2024 LiveLaw (Bom) 73
Bansilal S. Kabra v. Global Trade Finance Limited & Anr 2024 LiveLaw (Bom) 74
Anoushka Tusharkumar Desai v. State of Maharashtra 2024 LiveLaw (Bom) 75
Basant Kumar Bihani v. Union of India 2024 LiveLaw (Bom) 76
M/s Bafna Udyog v. Micro & Small Enterprises, Facilitation Council and anr. 2024 LiveLaw (Bom) 77
Shanklesha Construction and Ors. v. Ashok Mohanraj Chhajed 2024 LiveLaw (Bom) 78
KIPL Vistacore Infra Projects JV v. Municipal Corporation of the city of Ichalkarnji 2024 LiveLaw (Bom) 79
Dimple Rakesh Doshi v. Jayshree Manmohandas Sanghavi 2024 LiveLaw (Bom) 80
ABCD v. WXYZ 2024 LiveLaw (Bom) 81
XYZ v. The Union of India 2024 LiveLaw (Bom) 82
Nilesh Shejwal v. Agrowon Agrotech Industries Pvt. Ltd. 2024 LiveLaw (Bom) 83
Ravi Ashish Builders Ltd v. Shardadevi Vikramjeet Yadav and Anr. 2024 LiveLaw (Bom) 84
Moti Dinshaw Irani and Anr. v. Phiroze Aspandiar Irani and Ors. 2024 LiveLaw (Bom) 85
Gitadevi Ramprakash Podar v. Pragnesh Narayan Podar and Ors. 2024 LiveLaw (Bom) 86
ABC v. XYZ 2024 LiveLaw (Bom) 87
M/s. SCK International v. Commissioner of Customs (Nhava Sheva-V) 2024 LiveLaw (Bom) 88
Shailesh Vishwanath Jambhale v. The General Manager, State Bank of India 2024 LiveLaw (Bom) 89
Maharani Ahilyadevi Samaj Prabodhan Manch v. State of Maharashtra 2024 LiveLaw (Bom) 90
Suhas Dashrath Jagtap v. State of Maharashtra 2024 LiveLaw (Bom) 91
Bachpan Bachao Andolan and Anr. v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 92
Sagar D. Meghe v. State of Maharashtra 2024 LiveLaw (Bom) 93
Chanda Kochhar v. Central Bureau of Investigation 2024 LiveLaw (Bom) 94
Gokulnath Raghu Shetty v. Central Bureau of Investigation 2024 LiveLaw (Bom) 95
Mira Bhavin Mehta v. Income Tax Officer 2024 LiveLaw (Bom) 96
Ashwini Sanjay Kale and Ors v. State of Maharashtra 2024 LiveLaw (Bom) 97
Principal Commissioner of Income Tax v. Videocon Industries Ltd. & Anr. 2024 LiveLaw (Bom) 98
Dr. Ramnath Govind Kadam and Ors. v. Mangal Bhausaheb Kadam and Ors. 2024 LiveLaw (Bom) 99
Rabo Bank v. State Bank of India 2024 LiveLaw (Bom) 100
Showik Indrajit Chakraborty v. Addl. Superintendent of Police 2024 LiveLaw (Bom) 101
M/s. Jagruti Foundation, Pune v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 102
Jijaba Dashrath Shinde v. State of Maharashtra 2024 LiveLaw (Bom) 103
Rahul S/o Dhondiram Meshram v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 104
Prashant @ Sonya Ramesh Sabale v. State of Maharashtra and Anr. 2024 LiveLaw (Bom) 105
Grand Paradi Co-operative Housing Society Ltd. & Ors. v. Mont Blanc Properties & Industries Pvt. Ltd. & Ors. 2024 LiveLaw (Bom) 106
State of Maharashtra v. Dr. Anil Pinto 2024 LiveLaw (Bom) 107
Shendra Advisory Services P. Ltd. v. Deputy Commissioner of Income Tax 2024 LiveLaw (Bom) 108
ABC v. State of Maharashtra 2024 LiveLaw (Bom) 109
Devika Natvarlal Rotawan v. State of Maharashtra and Ors 2024 LiveLaw (Bom) 110
Shanta Digambar Sonawane v. Union of India and Anr. 2024 LiveLaw (Bom) 111
Lata Rajesh Shetty @ Latha Rajesh Shetty v. Satish Surappa Poojari 2024 LiveLaw (Bom) 112
Central Bureau of Investigation v. Netflix Entertainment Services India LLP 2024 LiveLaw (Bom) 113
The Commissioner of Income Tax (TDS) v. M/s. B. Arunkumar Trading Ltd 2024 LiveLaw (Bom) 114
Yogesh Rajendra Mehra v. Principal Commissioner CGST & Central Excise Raigad 2024 LiveLaw (Bom) 115
Eknath Ganpatrao Khadse and Ors. v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 116
Godrej Industries Ltd. v. The Assistant Commissioner of Income Tax 2024 LiveLaw (Bom) 117
Reports/Judgments
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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: Bombay 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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.”
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.
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.
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 3rd generation Khillares that the 1st and 2nd 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.
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.
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.
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.
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.
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.
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.
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.”
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.”
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 Eligible Under State Government Scheme: Bombay 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
