Bombay High Court Weekly Round-Up August 28 To September 3, 2023

UPL Limited v. UOI 2023 LiveLaw (Bom) 394

Mohan Yeshwant Padawe & Ors v. State Of Maharashtra & Ors 2023 LiveLaw (Bom) 395

Kumar Kunal v. State of Maharashtra 2023 LiveLaw (Bom) 396

Heena Afrin Huzaifa Shaikh v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 397

Ankiti Bose v. Mahesh Murthy and Anr 2023 LiveLaw (Bom) 398

Sandeep Pandurang Patil v. State of Maharashtra 2023 LiveLaw (Bom) 399

ARG Outlier Media Private Limited v. Rayadu Vision Media Limited 2023 LiveLaw (Bom) 400

Commissioner, Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore 2023 LiveLaw (Bom) 401

Sanjay Katkar v. State of Maharashtra 2023 LiveLaw (Bom) 402

The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax 2023 LiveLaw (Bom) 403

Dattaprasad Kamat v. Assistant Commissioner Of Income Tax 2023 LiveLaw (Bom) 404

Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors. 2023 LiveLaw (Bom) 405

22Light v. OESPL Pvt Ltd. 2023 LiveLaw (Bom) 406

Memon Co-operative Bank Ltd. v. Prema Amarlal Gera & Anr. 2023 LiveLaw (Bom) 407

Uday Chari v. State of Goa and Ors. 2023 LiveLaw (Bom) 408

Reports/Judgments

Officers Not Diligently Discharging Duties, Playing With Public Revenue, MoF Should Take Serious View: Bombay High Court

Case Title: UPL Limited v. UOI

Citation: 2023 LiveLaw (Bom) 394

The Bombay High Court held that the Ministry of Finance is responsible for the officers who are not diligently discharging vital duties and who, in fact, are playing with the public revenue.

"We take judicial notice of a series of petitions reaching this Court on the ground that the concerned jurisdictional officers exercising such enormous powers not only under the Finance Act, 1994, but also under the other Central Acts, for reasons which are totally ill-conceived and contrary to law, have not adjudicated and/or taken forward the show cause notice for unduly long periods, and in some cases about 10 years," the bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed.

Transit Buildings Inherently Temporary Structures, Cannot Be Repaired Or Made Permanent: Bombay High Court

Case Title: Mohan Yeshwant Padawe & Ors v. State Of Maharashtra & Ors

Citation: 2023 LiveLaw (Bom) 395

The Bombay High Court held that transit buildings cannot be repaired or made permanent since they are inherently temporary and designed for short-term use.

The division bench of Justice GS Patel and Justice Kamal Khata added that these buildings were not subject to structural audit regulations.

“Transit buildings are by the very nature of their construction and by structural design temporary and not meant to last beyond three to five years. There is no question of repairs or of these buildings being made permanent. Even the planning permissions that are granted for transit buildings are not granted in the same manner or subject to the same stringent requirements as they are for permanent constructions…the attempt to apply the law on the TAC in structural audits to transit buildings is not only an inversion of law but is a perversion of the law.”

The observation came in a writ petition filed by four residents against demolition notices for a transit building constructed in 2006. The bench found that the buildings were built with a life of five years.

GMAT Exam Scam: Bombay High Court Denies Anticipatory Bail To Accused

Case Title: Kumar Kunal v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 396

The Bombay High Court denied anticipatory bail to one Kumar Kunal, accused of remotely accessing the laptop of GMAT exam candidates through Any Desk app, solving the papers, and manipulating results.

Justice Amit Borkar observed that the custodial interrogation of Kunal is necessary in light of WhatsApp chats between him and one Shantanu, a victim of the scam.

“prima facie, it appears that the relevant extract of diary maintained by the principal accused indicate payment of Rs.1,47,000/- and Rs.2,56,000/- to the applicant by cash. The prosecution case gets strength from the WhatsApp conversion between the applicant and witness Shantanu who is one of the victim…In the context of observations made in the said order the WhatsApp chat between witness Shantanu and the applicant does have material bearing on the investigation. Therefore, custodial interrogation of the applicant is necessary”, the court held.

Mere Use Of Deceased Brother's SIM Card Not An Offence: Bombay High Court Quashes Cheating Case

Case Title: Heena Afrin Huzaifa Shaikh v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 397

Observing that mere use of deceased brother's SIM card does not constitute an offence, the Bombay High Court quashed a cheating case against a doctor filed by her sister-in-law for alleged use of her deceased husband’s SIM card and sale of his movable assets without consent.

A division bench of Justice Nitin W Sambre and Justice RN Laddha in a writ petition filed by the accused seeking quashing of the case remarked that prima facie, the proceedings were initiated solely out of family difference.

“Merely because the sim-card of real brother was used by the sister i.e., the present petitioner, that by itself will not constitute or amount to commission of the offence. The fact remains that to infer misuse of sim-card by the petitioner, there is no iota of evidence to infer such act…Prima-facie, it appears that the criminal proceedings are initiated by the complainant against the petitioner solely out of family differences as could be inferred from the relationship between the complainant and the petitioner.”

Bombay High Court Permanently Injuncts Investor Mahesh Murthy In Defamation Suit Filed By Zillingo Co-Founder Ankiti Bose

Case Title: Ankiti Bose v. Mahesh Murthy and Anr

Citation: 2023 LiveLaw (Bom) 398

The Bombay High Court granted a permanent injunction against venture capitalist Mahesh Murthy over an article he authored for Outlook Business Magazine against Singapore-based startup Zilingo Pte’s former CEO Ankiti Bose.

Bose who was sacked from Zilingo over alleged financial irregularities last year, was granted relief in the defamation suit she filed against Murthy and Outlook. She was however not named in the article.

Justice SM Modak noted that while it may be true that Bose wasn’t specifically named in the article, the defendants took a dual stand in their affidavit in reply.

Bombay High Court Appoints Committee To Probe Alleged Illegal Allotments Under Basic Service For Urban Poor Scheme In Kalyan, Dombivali

Case Title: Sandeep Pandurang Patil v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 399

The Bombay High Court set up a committee headed by a retired judge for a “thorough” inquiry into alleged illegal allotment of tenements under the Basic Services for Urban Poor scheme being implemented by the Kalyan-Dombivali Municipal Corporation, located just outside Mumbai.

Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor observed:

“The scheme has a laudable object of not only developing the area but also providing basic infrastructure facilities such as housing and shops etc. to the urban poor; however, as per the allegations, the said scheme has been marred by large scale irregularities.”

'R. Logo': Bombay High Court Denies Interim Relief To Republic TV In Trademark Infringement Suit Against Rayudu Media

Case Title: ARG Outlier Media Private Limited v. Rayadu Vision Media Limited

Citation: 2023 LiveLaw (Bom) 400

The Bombay High Court refused interim relief to ARG Outlier Media Private Limited – owner of Republic TV - in a trademark infringement suit against Telangana based Rayudu media over its logo.

Justice Manish Pitale dismissed the interim application filed by ARG against using the logo observing, “This Court has compared the two device marks as a whole, which are depicted hereinabove, and it is found that applying the tests evolved through various judgements of Courts, it cannot be said that the plaintiff has made out a strong prima facie case in its favour to hold that the impugned device mark of the defendant is deceptively similar to the registered device mark of the plaintiff.”

Non-Payment Of Pension Once Court Quashed Employee’s Termination Unfair Labour Practice Even If Court Didn’t Explicitly Order Payment Of Pension: Bombay High Court

Case Title: Commissioner, Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore

Citation: 2023 LiveLaw (Bom) 401

The Bombay High Court recently imposed cost of Rs. 25,000/- on the Kolhapur Municipal Corporation for making a 73-year-old retired staff nurse to litigate for 15 years for her pension and pensionary benefits.

Justice Sandeep V Marne dismissed a writ petition filed by the Commissioner of Kolhapur Municipal Corporation challenging Industrial Court’s order to deposit the pension amount due to Shashikala Vijay Bhore, a staff nurse who retired in 2008.

The court held that since Bhore's dismissal was overturned, once she retired, she became entitled to pension and pensionary benefits under the Pension Rules. The court noted that Item 9 of the Schedule IV to the MRTU and PULP Act enlists unfair labour practice of failure to implement an award. Once Labour court passed an order setting aside her termination, the Municipal Corporation should have granted her pension and other pensionary benefits, the court reasoned. In that sense, the non-payment of pension would be covered by Item 9, the court said.

Protection Of SC/ST Act Not Limited To States Where Victims Are Recognized As SCs/STs: Bombay High Court

Case Title: Sanjay Katkar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 402

The Bombay High Court has ruled that the protection to members of Scheduled Castes or Scheduled Tribes (SC/ST) under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (Atrocities Act) can't be limited to states where they are officially recognized as such.

A Full Bench of Justice Revati Mohite Dere, Justice Bharati Dangre, and Justice NJ Jamadar held that even if a community isn’t recognized as SC or ST in a state, they still get the protection of the Act if an atrocity happens against them there

The court further ruled that, to avoid discrepancies, appeals against trial court orders under the Atrocities Act, regardless of the specified punishment, should be dealt by a single judge of the High Court. The court held that appeals against grant/refusal of bail under by Section 14A(2) of the Act should also be heard by a single judge of the High Court.

AO Not Justified In Disallowing Part Of The Commission Payment To Indian Hume Pipe: Bombay High Court

Case Title: The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 403

The Bombay High Court has held that the Assessing Officer (AO) was not justified in disallowing part of the commission payment to Indian Hume Pipe.

The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the mere fact that the assessee, Indian Hume Pipe, establishes the existence of an agreement between him and his agent and the fact of actual payment leaves it to the discretion of an officer to consider whether such expenditure was made exclusively for the purpose of the business. The expenditure incurred must be for commercial expediency. However, in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, the reasonableness of the expenditure has to be adjudged from the businessman's point of view and not from the department’s perspective.

Bombay High Court Refuses 50% Entitlement Of Beneficial Ownership In Husband's Shareholding By Portuguese Civil Code For 'Deemed Dividend' Taxability

Case Title: Dattaprasad Kamat v. Assistant Commissioner Of Income Tax

Citation: 2023 LiveLaw (Bom) 404

The Bombay High Court has refused 50% entitlement to beneficial ownership in a husband's shareholding under the Portuguese Civil Code for 'deemed dividend' taxability.

The bench of Justice Valmiki SA Menezes has observed that Section 2(6A)(e) in the Income Tax Act, 1922, which is similar to the provisions of Section 2(22) of the Income Tax Act, 1961, creates a deeming fiction, by which the dividend referred to is not a real dividend and the person deemed to have received it does not actually get any income. The only person who is deemed to have received that income can be assessed in respect of the dividend, that person alone being a shareholder.

The court noted that the effect of clause (e) of Section 2(22) is to broaden the ambit of the expression "dividend" by including certain payments that the company has made as a loan or advance for the individual benefit of a shareholder, but the definition does not alter the position that the dividend has to be taxed in the hands of the shareholder alone.

'Contempt: Bombay High Court Sentences 5 State Govt Officers To Month-Long Civil Imprisonment, Questions Their Suitability As Public Officers

Case Title: Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors.

Citation: 2023 LiveLaw (Bom) 405

The Bombay High Court came down heavily on five government officers and sentenced them to one-month civil imprisonment for contempt of court by repeatedly disobeying its orders.

A division bench of Justice GS Kulkarni and Justice Jitendra Jain was dealing with contempt petitions filed by project affected farmers regarding non-compliance of court’s order for allotment of land to them.

The court however, stayed the execution of the sentence till September 6, the next date of hearing.

Court Can Within The Limited Scope Of Judicial Scrutiny Under Section 11 Of The A&C Act, Examine If Claims Are Frivolous Or Meritless: Bombay High Court

Case Title: 22Light v. OESPL Pvt Ltd.

Citation: 2023 LiveLaw (Bom) 406

The High Court of Bombay held that despite the limited scope of judicial scrutiny under Section 11 of the A&C Act, the Court would refuse to appoint the arbitrator when on a prima facie scrutiny of the material on record, it can come to a conclusion that claims sought to be arbitrated are frivolous and meritless.

The bench of Justice Manish Pitale refused to appoint an arbitrator when the claims sought to be arbitrated by the petitioner were pre-mature as per the terms of the agreement

Bombay High Court Frowns On Lawyer Blaming Junior For Missing Appearance, Orders Him To Gift Book On Constitutional Law To Junior

Case Title: Memon Co-operative Bank Ltd. v. Prema Amarlal Gera & Anr.

Citation: 2023 LiveLaw (Bom) 407

The Bombay High Court expressed displeasure over a lawyer blaming his junior for the dismissal of an appeal due to his missing a courtroom appearance.

“We find it most unfortunate that the Appellant’s Advocate on record has sought to lay the blame for non-appearance at the hands of a junior Advocate, who had infact enrolled as an Advocate less than two months before the date on which the said Appeal came to be dismissed”, the court remarked.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor directed the senior lawyer Jayesh Patel to gift the book ‘Working in a Democratic Constitution: The Indian Experience by Granville Austin’ to the junior advocate as a gesture of goodwill.

“it would be apposite that instead of granting costs in the conventional sense, that the learned Advocate on record for the Appellant gift a copy of ‘Working in a Democratic Constitution : The Indian Experience by Granville Austin’ to the learned junior Advocate, whose name finds mentioned in Paragraphs 6 and 7 of the Interim Application. This, in our view, would serve as a gesture of goodwill and erase any misunderstanding or ill will that may have occurred in the mind of learned junior Advocate”, the court said.

Christian Members Of OBC Communities Not Entitled To Reservation Unless Specifically Included In State OBC List: Bombay High Court At Goa

Case Title: Uday Chari v. State of Goa and Ors.

Citation: 2023 LiveLaw (Bom) 408

The Bombay High Court at Goa held that Christian members of a community listed the Goa State OBC list are not entitled to reservation benefits unless the state government specifically notifies the Christian members of the community to be included in the OBC list.

A division bench of Justice MS Sonak and Justice Bharat P Deshpande set aside the caste certificate of a Zilla Panchayat member observing that the notification for including Mesta community in the state OBC list does not include “Christian Mesta”, to which he belongs.

Other Developments

'Group Defections' In Name Of Political Parties' Split & Merger Betray Voters: PIL In Bombay HC Against Para 4, 10th Schedule To Constitution

A Public Interest Litigation (PIL) filed in the Bombay High Court challenges the exception to legislators from “disqualification on ground of defection” in case of merger of political parties.

The PIL, filed by Meenakshi Menon, founder trustee of NGO Vanashakti, argues that Paragraph 4 of the 10th Schedule of the Constitution allows legislators to defect and breach their social contracts with the voters, who vote based on manifestos of political parties.

Adani Properties Justifies In Bombay High Court Additional Concessions Granted By Maharashtra Govt In Tender For Dharavi Redevelopment

Additional concessions were provided in the new tender issued in 2022 for Mumbai’s Dharavi slum redevelopment project as the new tender provided for affordable housing to around 7 lakhs tenements ineligible for redevelopment, and the cost for the same is to be borne by the successful bidder, Adani Properties Pvt. Ltd submitted before the Bombay High Court.

Adani Properties as well as the state government have filed affidavits before the court in a writ petition by UAE based Seclink Technologies challenging the 2022 tender process by which Adani emerged the highest bidder for Dharavi slum redevelopment project. The state government in its affidavit has submitted that the concessions would have also been available to Seclink, had it participated in the new tender process.