Bombay High Court Weekly Digest: 08 July – 14 July, 2024

Citations: 2024 LiveLaw (Bom) 335 To 2024 LiveLaw (Bom) 348

Nominal Index [Citation 335 – 348]

Patanjali Foods Ltd. Versus UOI, 2024 LiveLaw (Bom) 335

Konkan LNG Limited Versus The Commissioner of State Tax. 2024 LiveLaw (Bom) 336

X. Y. Z. vs. Dean of Vitthal Sayanna Civil Hospital & Ors., 2024 LiveLaw (Bom) 337

Symbiosis Open Education Society and Symbiosis Skills and Professional University & Anr. vs. University Grants Commission & Ors., 2024 LiveLaw (Bom) 338

CEAT Limited vs. Viren Mishra, 2024 LiveLaw (Bom) 339

Saraswati Santosh Rathod v. Commissioner of Police Pune City and Ors, 2024 LiveLaw (Bom) 340

Zakaulla Khazi vs State of Goa, 2024 LiveLaw (Bom) 341

Ivory Properties & Hotels Private Limited vs. Vasantben Ramniklal Bhuta & Ors., 2024 LiveLaw (Bom) 342

ACIT Versus Sociedade de Fomento Industrial Pvt. Ltd., 2024 LiveLaw (Bom) 343

Vrindavan CHSL & Ors., State of Maharashtra & Anr., 2024 LiveLaw (Bom) 344

Cong Ling v. FRRO, 2024 LiveLaw (Bom) 345

Raj Shipping Agencies Ltd vs. The Board of Trustees of the Port of Mumbai , 2024 LiveLaw (Bom) 346

Smt. Sunita Purushottam Virgincar Versus ITO, 2024 LiveLaw (Bom) 347

Vivek Krishnamurari Shrivastav v. State of Maharashtra and Ors., 2024 LiveLaw (Bom) 348

Judgments/Final Orders:

Bombay High Court Quashes Customs Duty Reassessment Against Patanjali Foods On Crude Palm Oil Import

Case Title: Patanjali Foods Ltd. Versus UOI

Citation: 2024 LiveLaw (Bom) 335

The Bombay High Court has quashed the customs duty reassessment against Patanjali Foods on the import of crude palm oil for home consumption. The Bench of Justice K. R. Shriram and Justice Jitendra Jain has observed that the rate in force would be the rate that was in force on the date and time of presentation, and in Patanjali's case, since self-assessed bills of entry were already presented before the enhanced rate came into force, the rate payable would be USD 1163 PMT. The said notification enhancing duty applied only to bills of entry presented after 21:24:11 hours on May 13, 2021, and since Patanjali's four ex-bond bills of entry were presented even before 21:00 hours, the enhanced rates would not apply to Patanjali's case.

Breakwater-Wall For Ship-Safety Not 'Plant And Machinery', GAIL Subsidiary Not Eligible For ITC: Bombay High Court

Case Title: Konkan LNG Limited Versus The Commissioner of State Tax

Citation: 2024 LiveLaw (Bom) 336

The Bombay High Court has held that the breakwater wall or accropode that are essential certainly do not qualify as plant and machinery. The breakwater wall can hardly be called “plant or machinery." Accropodes lose their identity when a breakwater wall is constructed using accropode. The bench of Justice K. R. Shriram and Justice Jitendra Jain has observed that Explanation to Section 17 also provides that “plant and machinery” should be used for making outward supply of goods or services. The breakwater wall is used for protecting the vessel from tides while unloading the LNG received and not for making outward supplies of goods or services. Therefore, the petitioner does not satisfy the condition provided in the Explanation to Section 17 to be eligible for ITC.

Bombay High Court Expresses Anguish Over Social Stigma Suffered By Women Due To Unwanted Pregnancies Without Any Repercussions For Men

Case title: X. Y. Z. vs. Dean of Vitthal Sayanna Civil Hospital & Ors.

Citation: 2024 LiveLaw (Bom) 337

In cases of married women becoming pregnant from a man other than her husband, the biological father does not suffer the pain, and social castigation as is suffered by the mother, the Bombay High Court observed on Monday while disallowing a woman to abort her more than 26 weeks pregnancy. The woman in the present case had become pregnant after she indulged in a sexual relationship with her friend while her divorce proceedings against her husband were pending. A division bench of Justices Ajay Gadkari and Neela Gokhale while denying the permission to abort the foetus, as recommended by the medical board, noted that one of the grounds on which the petitioner woman sought to undergo medical termination of her pregnancy was "social stigma."

"We have given our consideration to the grounds on which the Petitioner sought permission. The main reason appears to be fear of social stigma in society coupled with her economical condition. In our view, these grounds are not included in the exceptions where the outer limit of the length of the pregnancy is lifted under the MTP Act," the bench noted.

Bombay High Court Upholds Constitutional Validity Of UGC Regulations On Distance Learning And Online Programmes

Case title: Symbiosis Open Education Society and Symbiosis Skills and Professional University & Anr. vs. University Grants Commission & Ors.

Citation: 2024 LiveLaw (Bom) 338

The Bombay High Court has upheld the constitutional validity of the University Grants Commission (Open and Distance Learning Programmes and Online Programmes) Regulations, 2020, which require universities to meet specific accreditation scores or rankings and to offer programmes in conventional/traditional mode before offering them through distance or online modes. However, the Court also observed that the current accreditation criteria are inappropriate for a Skill University.

The Division Bench of Justices B. P. Colabawalla and Somasekhar Sundaresan observed that through the requirement that ODL (Open and Distance Learning) and OL (Online) programme must also be offered in the conventional mode, with at least one batch having passed out, the HEIs (higher Educational Institutions) must demonstrate as a 'proof of concept' in offering a programme. It observed that if at least one batch has graduated from the conventional programme, it would indicate that the HEI is conducting the programme with market acceptability for it, thus ensuring the quality in the ODL and OL modes. The Court therefore held the requirements of the Regulations were a rational and reasonable policy choice.

However, the court observed that until an appropriate set of NAAC parameters is established for a skill university, the outcome of a skill university's review by NAAC would not be appropriate. However, the Court also remarked that since it did not find the requirements of the Regulations to be unconstitutional, it has to issue directions to address such anomaly so that the constitutional validity of the Regulations was not disturbed while ensuring that its effect was not arbitrary and unreasonable to the petitioner.

Section 5 Of Limitation Act Can Be Applied To Condone Delays Under Commercial Courts Act Even In Absence Of Express Provisions: Bombay HC

Case title: CEAT Limited vs. Viren Mishra

Citation: 2024 LiveLaw (Bom) 339

The Bombay High Court condoned delay in filing an appeal pertaining to a commercial suit, citing Section 13 of the Commercial Courts Act which allows for the condonation of delay, even in absence of any specific provisions in the Limitation Act. The Court referred to Section 29 of the Limitation Act, stating that since the Commercial Courts Act does not specify a limitation period, Sections 4 to 24 of the Limitation Act apply.

The Division Bench of Nitin W. Sambre and Abhay J. Mantri stated that the plain reading of Section 13 of Commercial Courts Act indicates that the delay can be condoned even in absence of any express provisions in the Limitation Act. The Court referred to Section 29 of Limitation Act which provided that if the period of limitation is not prescribed in any special or local law, then provisions of Sections 4 to 24 of the Limitation Act will apply. Therefore, as per Section 29(2) of Limitation Act, as the principal statute (Commercial Courts Act) does not contain any provisions on limitation period, provisions of Section 4 to 24 of Limitation Act are attracted.

Society In Which Earning Members Are Addicted Will Naturally Suffer Economically And Socially: Bombay High Court

Case Title: Saraswati Santosh Rathod v. Commissioner of Police Pune City and Ors

Citation: 2024 LiveLaw (Bom) 340

A society in which the earning member of the family is addicted, would naturally suffer economically and socially, the Bombay High Court observed recently while upholding the detention of a woman on the ground that she was manufacturing illegal liquor. A division bench of Justices Bharati Dangre and Manjusha Deshpande held that the Detaining Authority, in the instant case, rightly formed its opinion that the activities of the petitioner - Saraswati Rathod, were prejudicial to maintenance of public order.

While Imposing Conditions For Bail, Trial Court Cannot Direct Accused To Apply For Passport, Obtain It & Then Surrender It: Bombay HC

Case title: Zakaulla Khazi vs State of Goa

Citation: 2024 LiveLaw (Bom) 341

In a significant order, the Goa bench of the Bombay High Court on Tuesday held that a trial court while granting bail does not have any power to direct a person/accused to apply for a passport, obtain it and then surrender it to avail bail. Single-judge Justice Bharat Deshpande quashed and set aside such an "unusual" condition imposed by a trial court in Agassaim, Goa while granting bail to one Zakaulla Khazi booked in an attempt to murder case.

Bombay High Court Sets Aside Arbitral Award Due To Arbitrator Relying On Non-Executed Agreement, Adopting Non-Judicial Approach

Case title: Ivory Properties & Hotels Private Limited vs. Vasantben Ramniklal Bhuta & Ors.

Citation: 2024 LiveLaw (Bom) 342

The Bombay High Court set-aside an Arbitral Award under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) as the Arbitrator relied on a non-executed agreement for arriving at the decision. The Court stated that it can annul an arbitral award under Section 34 if the arbitrator adopted a non-judicial approach.

The Division Bench of B.P. Colabawalla and Somasekhar Sundaresa noted that the court can interfere with an arbitral award if the interpretation of the agreement/contract by the arbitrator in unreasonable and not based on any evidence. It stated “Construction of a contract is primarily the domain of the arbitrator, unless the arbitrator were to construe a contract in a manner that no fair-minded or reasonable persons could do. Put differently, if the view taken by the arbitrator is not even a possible view to take, the award would be liable to be set aside. So also, a finding based on no evidence at all or an award that ignores vital evidence in arriving at its decision, would be perverse and liable to be set aside on the ground of patent illegality.”

Assessee Can't Be Expected To Deduct TDS From Payments Which Became Taxable Owing To Retrospective Amendment: Bombay High Court

Case Title: ACIT Versus Sociedade de Fomento Industrial Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 343

The Bombay High Court at Goa, while upholding the order of the Income Tax Appellate Tribunal (ITAT), has held that the assessee cannot be expected to deduct tax at source from payments that became taxable owing to a retrospective amendment. The bench of Justice M.S. Karnik and Justice Valmiki Menezes has observed that it is not open to the department to take a divergent view on the expenditure for renovation and construction of schools or temples when it has allowed the expenditure on the purchase of ambulances, which was allowed by CIT(A), based only on the reason that the expenditure was huge.

Maharashtra Govt Decision Hiking Lease Rentals In Mumbai's Bandra Not Extortionate: High Court

Case title: Vrindavan CHSL & Ors., State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 344

The Bombay High Court has held that the State Government's decision to calculate lease rent based on the value of land given in the 'Ready Reckoner' was not arbitrary. However, it ruled the Government Resolution allowing lease rent revision every 5 years, as per the value of land on date of such revision, was invalid because the original lease deed did not stipulate such revision. The Division Bench of Justice Somasekhar Sundaresan and Justice B. P. Colabawalla were considering a bunch of petitions challenging the constitutional validity of the Maharashtra State's Government Resolutions (GR), namely, 2006 GR, 2012 GR and 2018 GR. The government had granted long-term leases of government land to various lessees, located in Bandra, Mumbai.

The Court observed that an expert body of persons fix the average rate of lands and buildings and that the Ready Reckoner is prepared with great deal of detailing, with rated even being fixed street wise. It stated that “there is nothing wrong in the Government looking to the Ready Reckoner rate as a reasonable benchmark of value for the purposes of calculating the revised lease rent.” The Court therefore held that the government could fix lease rent by taking into account the value of the land as per the Ready Reckoner. Further, it observed that each member's liability towards the revised lease rent is a maximum of Rs.6,000 per month, and in some cases, even less than Rs.2,000 per month. In view of this, the Court stated that the increase in lease rent was not exorbitant. However, the it struck down the provision for revision of lease rent every 5 years as the original deed guaranteed a fixed lease rent for the entire term and therefore could not changed through a Government Resolution.

No Foreigner In India Can Be Deprived Of Their Rights: Bombay HC Orders Rs 10 Lakh Compensation To Chinese Woman Harassed By Customs Dept

Case Title: Cong Ling v. FRRO

Citation: 2024 LiveLaw (Bom) 345

Observing that it is the obligatory duty of the State to ensure that the liberty of foreign nationals coming to India is not deprived except by law, the Bombay High Court on Thursday ordered the Customs Department to issue a "no objection certificate" (NOC) for facilitating the return of a Chinese national woman to her home country, who was wrongly booked in a gold smuggling case. Single-judge Justice Prithviraj Chavan expressed anguish over the manner in which the Customs Department "harassed" the woman - Cong Ling, who was wrongly arrested in 2019 and since then has been in India leaving her children behind in China, and therefore ordered the Union Government to pay Rs 10 lakh compensation to her.

Interpretation Of 'Scale Of Rates' By Tariff Authority For Major Ports Is A Binding Decision: Bombay High Court

Case title: Raj Shipping Agencies Ltd vs. The Board of Trustees of the Port of Mumbai

Citation: 2024 LiveLaw (Bom) 346

The Bombay High Court has held that the Tariff Authority for Major Ports (TAMP) is the authority to interpret the 'Scale of Rates' fixed by it for services, port dues and other charges under the Major Port Trust Act, 1963 (MPT Act) and that its interpretation is a 'decision' and binding on the parties involved. The Division Bench of Justices K. R. Shriram and Jitendra Jain referred to the provisions of the MPT Act. It noted that Section 30 of MPT Act provides that existing rates would apply, unless altered by the competent authority i.e. TAMP. It also referred to Section 42(4) which prohibits any Board Member or authorised person of a port authority from charging any sum higher than that fixed by the TAMP. It further referred to Sections 48 and 49 MPT Act which provide that TAMP must periodically set rates and conditions for services performed by the port authority.

In view of these provisions, the Court observed that TAMP fixes the scale of rates and statement of conditions to be levied by the major ports and thus the TAMP's interpretation of the scale of rates is binding on the port authorities. It remarked “…the view expressed by TAMP is binding on respondent as it is TAMP that has interpreted the scale of rates fixed by it.”

Reassessment Notice Not Complying Section 148 Pre-Conditions Is Beyond Jurisdictional: Bombay High Court

Case Title: Smt. Sunita Purushottam Virgincar Versus ITO

Citation: 2024 LiveLaw (Bom) 347

The Bombay High Court at Goa has held that the reassessment notice issued without complying with the pre-conditions mentioned in Section 148 of the Income Tax Act was beyond jurisdiction. The bench of Justice M. S. Karnik and Justice Valmiki Menezes has observed that the substantive rights of the original petitioner were governed by the provisions of the Portuguese Civil Code. The fact that the original petitioner is governed by the Portuguese Civil Code has been duly brought before the respondents. The bench opined that mere non-mention of the same in the return of income would not give rise to a situation where the tax on the sale of property beyond the share of the original petitioner could be taxed in her hands.

If Parole Can Be Given To Share Grief, Why Not To Share Happy Moments? Bombay HC Releases Convict To Meet Son Going Abroad To Study

Case Title: Vivek Krishnamurari Shrivastav v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 348

The Bombay High Court earlier this week held that if parole can be provided to a convict in emergency situations or for marriages in the family, it can also be granted for the convict to share "happy moments" with his family like the travelling of his child to some other country for studies. The observation came on a plea filed by a life convict, who sought parole to meet his son, who has secured admission in a university in Australia and is expected to fly out of India on July 22.

A division bench of Justices Bharati Dangre and Manjusha Deshpande noted the object of Rules governing parole and furlough provides temporary release of the prisoner, which is warranted so as to enable the inmate to maintain continuity with his family life and deal with the family matters and also to save him from the evil effects of continuous prison life and maintain his mental balance by creating active interest in life and to enable him to remain hopeful for the future.

Other orders/Observations:

Bombay HC Orders Directorate Of Higher Education To Look Into Allegations Of 'Institutional Casteism, Sexual Harassment' Within ILS Law College

The Bombay High Court on its administrative side has asked the Directorate of Higher Education, Pune to look into the allegations of 'institutional casteism, ragging, sexual harassment, hooliganism, favouritism and ill-treatment of minority students' levelled by over 118 students and alumni of the ILS Law College, Pune. In a letter addressed to the Directorate of the Higher Education on July 4, the Registrar Judicial of the Bombay High Court has requested the authority to “look into the grievances voiced by the students in their May 21 letter to the Chief Justice of the High Court, and act in accordance with law.” The Registrar has further asked the authority to communicate the action it proposes to take, to the complainant students, at the earliest.

"Remarks Against Rohingyas & Bangladeshis, Didn't Hurt Indian Religious Sentiments": State To Bombay HC In Hate Speech Case Against BJP Leaders

Using the words Rohingyas, Bangladeshis or Jihadis is not against the Muslim community living in India, the Mumbai Police told Bombay High Court on Tuesday while justifying its decision not to invoke section 295A (outraging religious sentiments) against BJP leaders Nitesh Rane, T Raja and Geeta Jain. "No case is made out for section 295A. The entire statement is against the Rohingyas and Bangladeshis. The provision in question is for outraging sentiments of Indians and admittedly the Rohingyas and Bangladeshis are not from India and they have entered our jurisdiction illegally and that is an admitted position," the Public Prosecutor Hiten Venegaonkar told the High Court.

A division bench of Justices Revati Mohite-Dere and Shyam Chandakwas was hearing a bunch of petitions seeking action against Rane and other BJP leaders for delivering objectionable and hate speeches against the Muslim community at four different places - Ghatkopar, Mankhurd, Malwani in Mumbai and Kashimira in Mira-Bhayander, during the month of January this year. Taking the statement on record, the judges disposed of the petition observing that most of the prayers sought for in the petition have been fulfilled. "A conscious statement is made by the highest officers of the police departments in Mumbai and Mira-Bhayander, not to invoke section 295A. We accept the said statement. Leave is granted to the petitioners to seek for invocation of section 295A at the appropriate stage (framing of charges) before an appropriate forum," the bench said in the order.

Bombay High Court Directs Patanjali Ayurved To Deposit Rs 50 Lakh For Breach Of Injunction Order In Trademark Infringement Case

Case Title: Mangalam Organics Ltd. v. Patanjali Ayurved Ltd. & Ors. (Interim Application (L) No. 4586 of 2024)

The Bombay High Court has directed Patanjali Ayurved Ltd. to deposit Rs. 50,00,000 to the court as it violated an injunction/ad-interim order of the Court that had restrained the company from selling its camphor products, in relation to a trademark infringement case filed by Mangalam Organics Ltd. Justice R.I. Chagla took note that Patanjali Ayurved has itself admitted that it has been supplying camphor products post the injunction order. The Court stated that there was an admission on part of the defendants regarding the breach of the injunction order “for which the Defendants would necessarily have to purge the contempt of the injunction order.” Before passing an order on contempt of the injunction order, the High Court directed Defendant No.1 to deposit an amount of Rs. 50,00,000 to the Court.

Supreme Court Collegium Recommends Permanent Appointment Of 7 Additional Judges Of Bombay High Court, Fresh 1-Yr Term For 2 Addl Judges

The Supreme Court Collegium, comprising CJI Dhananjaya Y Chandrachud, Justice Sanjiv Khanna and Justice B R Gavai has recommended to make 7 Additional Judges of the Bombay High Court as Permanent Judges. Additionally, two other Additional Judges were recommended for a fresh term of one year with effect from October 07.

Bombay High Court Pulls Up Maharashtra Govt Over Advisory Board On Persons With Disabilities Remaining Defunct Since 2020

The Bombay High Court on Wednesday pulled up the Maharashtra government for failing to make functional, the State Advisory Board, as mandated under the Rights of Persons with Physical Disabilities Act, 2016, for the last four years. A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar noted that the Advisory Board, which has to take up the cause of people with disabilities, has been lying defunct since 2020 as the State did not fill up the vacancies in the said board. The bench said the Rights of Persons with Disabilities Act, 2016 mandated the setting up of an Advisory Board.

Bombay High Court Denies Bail To Sanjay Chhabria Booked In Yes Bank-DHFL Multi-Crore Scam

The Bombay High Court on Wednesday dismissed the bail application of developer Sanjay Chhabria of the Radius Group, involved in a money laundering case related to the multi-crore Yes Bank-DHFL Scam. This is the second time that Chhabria's bail was rejected by the High Court. He was arrested in April 2022 on the allegation that a company related to him has availed a loan of ₹ 2,137 crores from DHFL. The allegation is that this amount was a 'proceed of crime' as it was part of the amount which was given to DHFL by Yes Bank, in an illegal manner. Further, he did not use the said amount for the purpose for which it was availed but instead the Enforcement Directorate (ED) alleged that most of the amount was used for personal gains through sham companies.

Single-judge Justice Manish Pitale dismissed his bail plea saying there was prima facie material to show his involvement in dealing with the proceeds of crime. The judge noted that the ED has elaborately stated in its report the money trail, showing the manner in which the amounts of loan totalling more than ₹ 2,000 crores were diverted at the behest of Chhabria, without being utilised for the purpose for which the loan was taken.

Plea Filed In Bombay HC Against Rahul Gandhi, Dhruv Rathee, Uddhav Thackeray For Allegedly Spreading False Narratives About 'EVM Hacking'

A petition has been filed in the Bombay High Court seeking contempt proceedings against Congress leader Rahul Gandhi, Shiv Sena (UBT) leaders Uddhav Thackeray, Aditya Thackeray, Sanjay Raut and YouTuber Dhruv Rathee, for allegedly interfering in a sub-judice matter. As per the petition, the respondents – Rahul Gandhi and others, had posted on the social media platform 'X', a story by newspaper 'Mid-Day', about an FIR being registered for hacking of EVMs allegedly by the family members of Ravindra Waikar, a Shiv Sena Leader from the Shinde faction. The petition claims that the said news item was factually wrong and the newspaper had issued an apology for the same. However, the respondents continued to create false narratives about the issue. The petitioner seeks to take action against the respondents for “their highly unlawful activities by spreading false narratives and conspiracy theories and interfering with the investigation and due process of law.”

RSS Defamation Case: Rahul Gandhi Gets Relief From Bombay High Court

In a relief for Congress leader Rahul Gandhi, the Bombay High Court on Friday quashed a Bhiwandi court order allowing the transcript of his speech as additional evidence in the criminal defamation case filed against him by a Rashtriya Swayamsevak Sangh (RSS) worker Rajesh Kunte. Single-judge Justice Prithviraj K Chavan allowed a writ petition filed by the Congress leader challenging the order of the Magistrate Court, which permitted the RSS worker to rely on the transcript of Gandhi's speech, wherein he had allegedly blamed the right-wing outfit for killing Mahatma Gandhi.

'Unable To Focus, Come With Specific Issues': Bombay High Court Inclined To Close Plea Related To Potholes In Mumbai

The Bombay High Court on Friday expressed that it was inclined to close the proceedings stemming out of a contempt of court petition highlighting the issue of potholes across Mumbai and neighbouring cities. A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar expressed that the court and also the authorities were unable to focus on the main issue as there are several intervenors coming up during each hearing.

"Every day a new party will be coming in and we will only be impleading people daily. We lose our focus and even the authorities. So, we are inclined to close these proceedings. But yes, if a specific case comes, we will focus on it and even the authorities will then focus," the Chief Justice said.