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Bombay High Court Quarterly Digest:...

Bombay High Court Quarterly Digest: January To March, 2024

Amisha Shrivastava

11 April 2024 2:10 PM IST

Reports/Judgments

January

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

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

Citation: 2024 LiveLaw (Bom) 1

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

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

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

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

Case Title: Mirza Himayat Baig v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 2

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 3

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

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

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

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

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 4

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

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

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

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

Case Title: Hiral Chandrakant Jadhav v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 5

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

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

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

Case Title: XXX v. XXXX

Citation: 2024 LiveLaw (Bom) 6

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 7

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 8

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 9

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

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

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

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

Citation: 2024 LiveLaw (Bom) 10

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 11

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 12

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 13

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 14

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

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

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

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

Case Title: Nitin Damodar Dhaberao v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 15

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 16

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 17

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

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

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

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

Citation: 2024 LiveLaw (Bom) 18

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 19

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 20

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 21

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 22

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

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

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

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

Citation: 2024 LiveLaw (Bom) 23

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

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

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

Case Title: Vuribindi Mokshith Reddy & Anr v. BITS

Citation: 2024 LiveLaw (Bom) 24

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 25

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

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

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

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

Case Title: State of Maharashtra v. Vijay Bhika Dive

Citation: 2024 LiveLaw (Bom) 26

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 27

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 28

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 29

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

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

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

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

Citation: 2024 LiveLaw (Bom) 30

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

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

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

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

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

Case Title: Geopreneur Realty Private Limited v. UoI

Citation: 2024 LiveLaw (Bom) 31

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

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

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

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

Citation: 2024 LiveLaw (Bom) 32

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 33

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

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

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

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

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

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

Case Title: Amit Satish Dhutia v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 34

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

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

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

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

Bombay High Court Upholds Constitutional Validity Of Goa Cess Act

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

Citation: 2024 LiveLaw (Bom) 35

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

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

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

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

Citation: 2024 LiveLaw (Bom) 36

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 37

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 38

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

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

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

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

Citation: 2024 LiveLaw (Bom) 39

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

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

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

Case Title: Satyen Kapadia v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 40

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 41

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

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

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

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

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

Case Title: Neelam Ajit v. ACIT

Citation: 2024 LiveLaw (Bom) 42

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 43

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

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

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

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 44

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

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

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

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

Case Title: XXX v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 45

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

Justice Madhav J Jamadar observed –

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 46

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 47

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 48

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

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 49

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

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

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

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

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 50

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

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

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

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

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

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 51

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

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

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

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

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

February

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

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

Citation: 2024 LiveLaw (Bom) 52

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 53

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 54

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 55

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 56

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 57

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 58

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 59

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

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

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

Citation: 2024 LiveLaw (Bom) 60

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

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

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

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

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

Case Title: Bal Asha Trust, Mumbai v. ABC

Citation: 2024 LiveLaw (Bom) 61

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 62

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

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

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

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

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

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

Case Title: Chanda Kochhar v. Central Bureau of Investigation

Citation: 2024 LiveLaw (Bom) 63

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

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

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

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

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

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

Case Title: Arvind Kejriwal v. State of Goa

Citation: 2024 LiveLaw (Bom) 64

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

Justices MS Sonak and Valmiki Menezes recorded –

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 65

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 66

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

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

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

Citation: 2024 LiveLaw (Bom) 67

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

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

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

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

Citation: 2024 LiveLaw (Bom) 68

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 69

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

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

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 70

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 71

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

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

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

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

Citation: 2024 LiveLaw (Bom) 72

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

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

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

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

Case Title: Adv. Pooja Patil v. Deputy Commissioner

Citation: 2024 LiveLaw (Bom) 73

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

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

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

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

Citation: 2024 LiveLaw (Bom) 74

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

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

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

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

Case Title: Anoushka Tusharkumar Desai v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 75

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

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

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

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

Case Title: Basant Kumar Bihani v. Union of India

Citation: 2024 LiveLaw (Bom) 76

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 77

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

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

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

Citation: 2024 LiveLaw (Bom) 78

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

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

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

Citation: 2024 LiveLaw (Bom) 79

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

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

Case Title: Dimple Rakesh Doshi v. Jayshree Manmohandas Sanghavi

Citation: 2024 LiveLaw (Bom) 80

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

Justice Manish Pitale stated –

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

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

Case Title: ABCD v. WXYZ

Citation: 2024 LiveLaw (Bom) 81

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

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

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

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

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

Case Title: XYZ v. The Union of India

Citation: 2024 LiveLaw (Bom) 82

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 83

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

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

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

Citation: 2024 LiveLaw (Bom) 84

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 85

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 86

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

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

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

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

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

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

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

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 87

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 88

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

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

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

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

Citation: 2024 LiveLaw (Bom) 89

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 90

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

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

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

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

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

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

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

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

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

Case Title: Suhas Dashrath Jagtap v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 91

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 92

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 93

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

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

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

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

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

Case Title: Chanda Kochhar v. Central Bureau of Investigation

Citation: 2024 LiveLaw (Bom) 94

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 95

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

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

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

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

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

Case Title: Mira Bhavin Mehta v. Income Tax Officer

Citation: 2024 LiveLaw (Bom) 96

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

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

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

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

Citation: 2024 LiveLaw (Bom) 97

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 98

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

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

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

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

Citation: 2024 LiveLaw (Bom) 99

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

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

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

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

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

Case Title: Rabo Bank v. State Bank of India

Citation: 2024 LiveLaw (Bom) 100

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 101

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 102

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

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

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

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

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

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

Case Title: Jijaba Dashrath Shinde v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 103

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

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

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

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

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

Minority Institution Receiving State Government Aid Cannot Deny Compassionate Appointment To An Applicant 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.

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

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

Citation: 2024 LiveLaw (Bom) 105

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 106

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 107

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 108

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

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

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

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 109

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 110

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 111

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 112

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 113

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

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

The judges agreed to watch the series themselves.

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

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

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

Citation: 2024 LiveLaw (Bom) 114

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

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

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

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

Citation: 2024 LiveLaw (Bom) 115

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

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

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

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

Citation: 2024 LiveLaw (Bom) 116

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 117

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

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

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

March

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

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

Citation: 2024 LiveLaw (Bom) 118

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 119

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 120

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

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

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

No Evidence To Connect Accused To Terrorist Act; Trial Failure Of Justice: Bombay High Court Acquits GN Saibaba

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

Citation: 2024 LiveLaw (Bom) 121

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 122

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

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

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

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

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

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

Case Title: Shiv Charan v. Adjudicating Authority

Citation: 2024 LiveLaw (Bom) 123

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 124

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

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

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

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

Citation: 2024 LiveLaw (Bom) 125

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

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

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

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

Citation: 2024 LiveLaw (Bom) 126

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

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

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

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

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

Case Title: Yogesh Rajendra Sawant v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 127

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 128

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 129

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

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

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

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

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

Case Title: Hari Sankaran v. Serious Fraud Investigation Office

Citation: 2024 LiveLaw (Bom) 130

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 131

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 132

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

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

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

Citation: 2024 LiveLaw (Bom) 133

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 134

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 135

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

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

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

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

Citation: 2024 LiveLaw (Bom) 136

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

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

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

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

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

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

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 137

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

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 138

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 139

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

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

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

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

Citation: 2024 LiveLaw (Bom) 140

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

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

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

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

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 141

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 142

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

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

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

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

Citation: 2024 LiveLaw (Bom) 143

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

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

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

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

Case Title: Arvind Kumar v. Laxmi Sanjay Nikam

Citation: 2024 LiveLaw (Bom) 144

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 145

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

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

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

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

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

Case Title: Akshay Londhe v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 146

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 147

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 148

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

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

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

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

Citation: 2024 LiveLaw (Bom) 149

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 150

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 151

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

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

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

Justices Revati Mohite Dere and Gauri Godse said –

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 152

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

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

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

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

Citation: 2024 LiveLaw (Bom) 153

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

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

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

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

Case Title: Milind Patel v. Union Bank of India

Citation: 2024 LiveLaw (Bom) 154

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

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

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

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

Case Title: Cherag Shah v. Harshwardhan H. Sabal

Citation: 2024 LiveLaw (Bom) 155

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 156

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 157

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

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

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

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

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

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

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

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

Citation: 2024 LiveLaw (Bom) 158

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

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

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

Case Title: Mahavir Enterprise v. Chandravati Sunder Salian

Citation: 2024 LiveLaw (Bom) 159

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

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

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

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

Citation: 2024 LiveLaw (Bom) 160

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

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

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

The court clarified that work orders for other constituencies already issued as per the impugned GRs shall remain unaffected. However, it directed the state to execute the originally sanctioned works for Kasba in the upcoming financial year.

Holi Colours: Pidilite Industries Gets Injunction Against Rang Rasayan & Others Over Rangeela Packaging

Case Title: Pidilite Industries Limited v. Radha KishanBishan Dass Rang Rasayan Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 161

Following the Bombay High Court's intervention in a copyright suit filed by Pidilite Industries Limited, Rang Rasayan Pvt Ltd undertook to not manufacture, sell or distribute any products using packaging similar to Pidilite's "Rangeela" brand of colored powders for Holi.

Justice Bharati Dangre further ordered the company to file details of the stock sold in the last one year.

Pidilite had filed a commercial IP suit alleging copyright infringement and passing off by the defendants over the use of lookalike packaging.

As per the terms of the injunction, the defendants have agreed to several commitments, including not manufacturing, selling or exporting the infringing products through any offline or online channels. They are also required to inform dealers, distributors and e-commerce platforms like Amazon, Flipkart and others to cease selling the impugned products.

Technical Difficulties Shouldn't Thwart Objectives Of Arbitral Proceeding: Bombay High Court Allows Petition For Replacement Of Arbitrator

Case Title: M/s. Paresh Construction & Foundation Ltd. v. Hindustan Petroleum Corp. Ltd.

Citation: 2024 LiveLaw (Bom) 162

The Bombay High Court single bench of Justice Bharti Dangre held although there might be an impression that with the legal termination of the arbitral tribunal's mandate upon the expiration of one year from the reference entry, as per Section 29A of the Arbitration and Conciliation Act 1996 there might be a technical difficulty. However, it held that such technicalities should not thwart the overarching objective of the proceedings.

Where Arbitral Award In Nature Of Money Decree, Requirement Of 100% Deposit Of Award For Grand Of Stay: Bombay High Court

Case Title: Balmer Lawrie & Co.Ltd v. M/s. Shilpi Engineering Pvt.Ltd.

Citation: 2024 LiveLaw (Bom) 163

The Bombay High Court single bench of Justice R.I. Chagla held that where the arbitral award is in the nature of money decree, there is a requirement for deposit of 100% of the awarded amount for grant of stay. Further, it held that there is no distinction in the application of parameters between stays sought under Section 36(3) and Section 37 of the Arbitration Act, as neither provision specifies such differentiation

Section 36(3):

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing.

Bombay High Court Issues Show Cause Notice For Contempt Against Borrower For Using “Extra- Judicial Pressure”

Case Title: Cholamandalam Investment & Finance Company Ltd. v. State of Maharahstra & Ors.

Citation: 2024 LiveLaw (Bom) 164

Observing that defaulting borrowers are increasingly taking law into their own hands, the Bombay High Court directed certain borrowers to explain why contempt notices shouldn't be issued against them.

A division bench of Justices BP Colabawalla and Somasekhar Sundaresan prima facie observed that even after handing over physical possession of the secured asset to the non-banking financial institution, the borrowers had re-entered the premises and by breaking open the locks.

“From what has transpired in the above matter, we find that that after giving a solemn undertaking to this Court, the borrowers have sought to put extra-judicial pressure on the authorised officer of the Petitioner-NBFC. This cannot be tolerated even for a minute. We are increasingly finding that borrowers are taking the law into their own hands.”

Accordingly, the court directed borrowers Prashant Tanaji Shinde, Yamuna Tanaji Shinde & Tanvi Chavan to remain present in court on March 28 along with their advocates and explain why contempt proceedings shouldn't be initiated against them.

Domestic Violence | Court Can't Direct Parties To File Affidavit Of Assets & Liabilities In Appeal Against Final Trial Court Judgment: Bombay HC

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 165

The Bombay High Court held that the appellate court cannot direct parties to file affidavit of disclosure of assets and liabilities in proceedings challenging final judgment of the trial court in a domestic violence case.

Justice Sharmila U Deshmukh clarified that such affidavits are only required at the interim stage for the purpose of deciding interim maintenance.

“filing of affidavit of assets and liabilities would amount to bringing in new material which will have to be tested on the touchstone of evidence which will not be permissible at the appellate stage after final adjudication. At the appellate stage, where challenge is to the final judgment, as opposed to an appeal against an order of interim maintenance, in my view, upon reading of the decision of Rajnesh v. Neha (supra), the direction of filing of affidavit of disclosure cannot be said to apply inasmuch as at the time of final determination, there is material available before the Trial Court supported by evidence on the basis of which rights of the parties have been determined”, the court stated.

Minimum Three Bidders, Not Three Technically Qualified Bidders Needed For Competitive Tender Process: Bombay High Court

Case Title: Kanchan India Limited & Anr. v. Government of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 166

The Bombay High Court clarified that minimum of three bidders, not three technically qualified bidders, are required make a tender process competitive as per paragraph 4.4.3.1 of the Procurement Manual of the state.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor reasoned that tendering authorities cannot predict the technical qualifications of bidders before evaluating their bids.

“As to whether participating tenders were technically qualified or not could be known to the tendering authority only after the bids are technically evaluated. The requirement of paragraph 4.4.3.1 is participation by minimum three bidders and not participation by three technically qualified bidders. If we read paragraph 4.4.3.1 to mean that it requires participation by minimum of three technically qualified bidders, such an interpretation will make the provision non-workable. The reason is very clear. No tendering authority can be said to be in know of the fact forehand as to whether the participating tenderer is technically qualified or not.”

Bombay High Court Orders Legal Action Against Doctor For Gross Negligence In Postmortem Procedure

Case Title: Jaywant @ Bhau Mukund Bhoir v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 167

The Bombay High Court ordered the Secretary of Health, Government of Maharashtra, and the Commissioner of Police, Thane to take legal action against a medical officer for gross negligence in conducting the postmortem of a deceased in a murder case.

“The Secretary, Health, Government of Maharashtra as well as Commissioner of Police Thane are directed to take cognizance of the said report as well as the order passed by this Court and initiate an appropriate legal action against Dr. Phad and the concerned for such a gross negligence and illegality in conducting a postmortem of the deceased-Mohan Bhoir”, Justice Prithviraj K Chavan directed.

The court was dealing with a bail application filed by one Jaywant Bhoir accused of murdering a man in 2020. Bhoir filed the present bail application on the ground that the post-mortem report did not specify the cause of death of the victim. The medical officer mentioned in the post-mortem report that the cause of death will be given after receipt of the chemical analysis report.

No By-Election For Akola West Assembly Constituency: Bombay High Court Quashes ECI's Notification

Case Title: Anil S/o. Shivkumar Dubey v. Election Commission of India and Ors.

Citation: 2024 LiveLaw (Bom) 168

The Bombay High Court quashed the Election Commission of India's (ECI) by-election notification for the Akola West Assembly Constituency, Maharashtra and held that there will be no bye-poll for the constituency.

A division bench of Justice Anil S Kilor and Justice MS Jawalkar sitting at Nagpur noted that the incoming member would have a term of less than a year till the expiry of the current Assembly's term.

“As the period of less than one year is left as a balance term an incoming member would get from the date of declaration of the result of the bye-election, we have no hesitation to hold that the impugned notification dated 16/03/2024 issued by the respondent No.1 (ECI) is contrary to proviso (a) to Section 151-A of the Act of 1951”, the court observed.

[Domestic Violence Act] Bombay High Court Upholds ₹3 Crores Compensation For Woman Whose Husband Called Her “Second-Hand”

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 169

The Bombay High Court upheld a trial court's order directing a man to pay Rs. 3 crores compensation to his ex-wife for various acts of domestic violence including calling her “Second Hand” as her engagement with another person was called off.

Justice Sharmila U. Deshmukh rejected the man's revision application against the orders observing –

“Although the abuse will necessarily result in mental torture and emotional distress for the aggrieved person, the gravity will differ from person to person. In the present case admittedly both the parties are well educated and highly placed in their workplace and in social life. That being the social standing, the acts of domestic violence would be greater felt by the Respondent No 1 as it would affect her self worth”

No Contributory Negligence By Car Driver Who Rammed Into Truck From Behind Due To Non-Functional Brake Lights: Bombay High Court

Case Title: New India Assurance Co. Ltd. v. Mangal Ravindra Divate

Citation: 2024 LiveLaw (Bom) 170

The Bombay High Court held that if a truck's brake lights or taillights are not working and a car rams into it from behind, the driver of the car vehicle is not liable for any negligence contributing to the collision.

Justice Shivkumar Dige set aside an order of the Motor Accident Claims Tribunal which held the deceased 50% responsible for the accident. The court enhanced the compensation awarded to the deceased car driver, nearly doubling the amount to Rs. 29,40,000.

“Driving 70 feet long trailer without any break light or tale lamps is a grievous negligence, but these facts are not considered by the Tribunal and has fixed 50% contributory negligence on the deceased, which is erroneous. Hence, I hold that accident occurred due to sole negligence of the driver of the offending trailer."

'No Sane Man Would Believe It': Bombay HC Grants Bail To Accused Who Allegedly Raped Victim In Broad Daylight At Crowded Juhu Chowpatty

Case Title: Baharul Islam Mujibur Rehman Laskar v. State of Maharashtra and Anr

Citation: 2024 LiveLaw (Bom) 171

The Bombay High Court granted bail to a watchman accused of raping a house help behind a rock at Juhu Chowpatty in May 2021 after the court found the woman's version of events to be prima facie un-believable.

Justice Prithviraj K. Chavan stated, "Since the victim was major at the time of alleged offence, prima facie, it does not appeal to one's mind that in a broad daylight at a crowded Juhu Chowpatty on the day of Id-Ul-Fitra, the applicant would commit forcible sexual intercourse with the victim. No sane man would believe it."

The prosecution had alleged that the accused, who was working as a watchman, had developed a friendship with the victim, who was employed as a housemaid. On May 14, 2021, it was alleged that he had taken the victim to Juhu Chowpatty and sexually assaulted her behind some stones, despite her refusal and threatened her with dire consequences.

Secured Creditor Registered With CERSAI Will Have Precedence Over VAT Authorities Against Proceeds Of Enforcement: Bombay HC

Case Title: Indian Overseas Bank v. Deputy Commissioner of State Tax

Citation: 2024 LiveLaw (Bom) 172

The Bombay High Court clarified that in a sale of a mortgaged asset, where the mortgage in favour of a secured creditor is registered prior in time with CERSAI, and the MVAT Authorities too have a charge, the proceeds of the enforcement of the mortgage would first go towards discharging the dues owed to the secured creditor.

It is only the residue, if any, after discharging the dues of the mortgagee, that may flow to the MVAT Authorities, added the Court.

The High Court therefore held that once a secured creditor registers its security interest u/s 26-B of the SARFAESI Act notwithstanding any other law in force, the debts owed to the secured creditor shall be paid in priority over all other debts including taxes payable to the State Government.

A Division Bench of Justice Somasekhar Sundaresan and Justice BP Colabawalla observed, “The only effect of the interplay between Section 26-E of the SARFAESI Act and Section 37 of the MVAT Act would be that MVAT Authorities would not have priority in the recourse to the assets that are secured in favour of the secured creditor and registered in priority with CERSAI”.

Patent Illegality | For Claim For Damages There Must Be Proof Of Actual Loss: Bombay High Court Stays Arbitral Award

Case Title: Alkem Laboratories Limited v. Issar Pharmaceuticals Pvt. Limited

Citation: 2024 LiveLaw (Bom) 173

The Bombay High Court single bench of Justice RI Chagla stayed an arbitral award noting that the Arbitrator contravened the settled law that for a claim for damages, there must be proof of actual loss which is sine qua non for such claim. It held that the Arbitrator failed to consider the proof of loss while awarding damages to the Claimant.

Maharashtra Govt's Action In Levying Stamp Duty On 'DO' Is Within Legislative Competence Of State: Bombay High Court

Case Title: Saurer Textile Solutions Pvt Ltd v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 174

The Bombay High Court held that the action of the Maharashtra Government in levying stamp duty on delivery orders (DO) is within the legislative competence of the state.

The bench of Justice GS Patel and Justice Neela Gokhale observed that the action of the State of Maharashtra in levying stamp duty on Delivery Orders (DO) as provided in Article 29 of Schedule I of the Maharashtra Stamp Act, 1958 (MSA) is well within the legislative competence of the State and does not intrude upon the legislative domain of the Parliament as reserved in Entries 41 and 83 of List I of Schedule VII of the Constitution of India and is not ultra vires Article 246(1), 286(1)(b) and 286(2) of the Constitution of India.

Detention Under MCOCA Can't Continue Despite Lawful Extension If Sanction To Prosecute Accused Rejected: Bombay High Court

Case Title: Dinesh Ganesh Indre and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 175

The Bombay High Court held that once the competent authority under the Maharashtra Control of Organised Crimes Act, 1999 (MCOCA) denies sanction to prosecute an accused, their detention under MCOCA must be terminated, even if it had been lawfully extended earlier by the special MCOCA court.

Justice NJ Jamadar granted default bail to four accused individuals under MCOCA, emphasizing that without the necessary sanction, there cannot be a case under the Act.

“once the competent authority declines to grant sanction under Section 23(2) of the Act, 1999, the extended period for completion of investigation, would terminate on the day the competent authority declines to grant sanction and on the next day, the right to seek default bail, in the event chargesheet is not filed, accrues to the accused”, the court further observed.

The accused were implicated in a criminal conspiracy involving a robbery and were seeking bail.