Bombay High Court Weekly Round-Up: October 9 To October 15, 2023

Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer 2023 LiveLaw (Bom) 472

Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 473

Ramkali Dayakisan Gupta & Anr v. Union of India & Ors. 2023 LiveLaw (Bom) 474

Bachpan Bachao Andolan & Anr. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 475

Dr. Mahendra Vilas Phalke and Ors vs State of Maharashtra 2023 LiveLaw (Bom) 476

Mohammed Atiq Ibrahim Ansari v. Central Board of Film Certification & Ors. 2023 LiveLaw (Bom) 477

Lalit S/o Nandlal Bais v. State of Maharashtra 2023 LiveLaw (Bom) 478

ABC v. State of Maharashtra 2023 LiveLaw (Bom) 479

Ravindra Dattaram Waikar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 480

ABC v. XYZ 2023 LiveLaw (Bom) 481

Mukesh Rajaram Chaudhari v. State of Maharashtra 2023 LiveLaw (Bom) 482

Reports/Judgments

Land Acquisition | Bombay High Court Directs Over Rs. 1.6 Crore Interest to Landowner As Compensation Not Deposited Before Taking Possession

Case Title: Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer

Citation: 2023 LiveLaw (Bom) 472

The Bombay High Court held that landowners are entitled to interest on the compensation amount if the compensation is not paid or deposited before the acquiring body takes possession of the property.

A division bench of Justice BP Colabawalla and Justice MM Sathaye directed the Collector, Mumbai City, to pay interest to the tune of Rs. 1.6 Crores for acquisition of two properties in Bhendi Bazaar, Mumbai.

The court directed the Collector to pay interest to the Petitioners at a rate of 9 percent per annum for the first year from the date of taking possession and 15 percent per annum from the start of the second year until the actual payment, which was made on October 20, 2022.

The court allowed two writ petitions seeking interest on the compensation awarded to the petitioners under section 80 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the 2013 Act).

Bombay High Court Orders Police Officer To Compensate NDA Professor Falsely Prosecuted For Alleged Fake Disability Certificate

Case Title: Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 473

The Bombay High Court ordered compensation of Rs. 25,000 to be paid to one Dr. Kamal Chandra Tiwari, an Assistant Professor at the National Defence Academy, Pune falsely prosecuted for producing fake disability certificates.

A division bench of Justice Nitin W Sambre and Justice RN Laddha ordered the compensation to be recovered from the salary of the police officer who filed a chargesheet despite being informed by the hospital that records of the disability certificates had been found.

The court observed that despite receiving a communication from Sassoon Hospital on September 9, 2016, confirming the availability of the original record, Pagare did not reexamine the case. The doctors’ statements were obtained before the original records were located; the court noted.

The court acknowledged the officer’s apology, but emphasized that his actions caused mental agony, compromised Tiwari's dignity, and constituted a malicious prosecution.

Govt Itself Seeks Needless Adjournments Then Makes Assertions About Rising Pendency Of Cases: Bombay High Court

Case Title: Ramkali Dayakisan Gupta & Anr v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 474

The Bombay High Court took a dig at the Centre’s dichotomous approach in often blaming Courts for restricting its “ease of doing business” on one hand and repeatedly seeking adjournments of cases on the other.

A division bench of Justices Gautam Patel and Kamal Khata observed,

“We are equally mindful, and we are constrained to say this, that we are no strangers to repeated assertions from the Union Government itself regarding pendency of cases, mounting arrears, frequent adjournments and impediments allegedly caused by our Courts to what the Government calls ‘the ease of doing business’.”

The court said despite these claims by the government it often sought adjournments needlessly.

“Conveniently overlooked in all these assertions is the fact that it is the Government that is by far the largest litigant, and it is the Government that most often seeks adjournments, frequently needlessly. This case is an example.”

Nullifies Spirit Of JJ Act: Bombay High Court Seeks Explanation For High Pendency Of 40K Cases Before Juvenile Justice Board And Child Welfare Committee

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

Citation: 2023 LiveLaw (Bom) 475

The Bombay High Court flagged the collective pendency of over 40,051 cases before the Juvenile Justice Board (JJB) and the Child Welfare Committee (CWC) while hearing a PIL by an NGO.

The division bench of Justices Nitin Jamdar and Manjusha Deshpande observed that the startling numbers were nullifying the spirit if the Juvenile Justice Act 2015.

“…the figures of 10,008 cases pending before the Juvenile Justice Board and 30,043 cases pending before the Child Welfare Committee would amount to nullifying of spirit of the Act.”

Bombay High Court Passes Interim Order For Reinstatement Of 17 Govt Hospital Doctors Pending Retirement Age Dispute

Case Title: Dr. Mahendra Vilas Phalke And Ors vs State of Maharashtra

Citation: 2023 LiveLaw (Bom) 476

The Bombay High Court recently granted interim relief to at least 17 doctors and directed the Maharashtra Government to reinstate them in government hospitals till they complete 60 years of age. The order, however, would be subject to the final outcome of the petition.

The doctors alleged they were forcefully relieved from their services of 30-35 years owing to the misinterpretation of a 2022 government notification.

Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 specified the retirement age of government servants such as the Petitioners as 58 years. However, owing to the dearth of Medical officers, the Public Health Department issued a resolution on August 29, 2018 and decided to extend the age of retirement to 60 years. It was further resolved that an amendment would be made to the Rules. The amendment finally came to effect on February 23, 2023. However, the proviso in the said notification said its effect will be only till May 31, 2023 which resulted in such doctors being relieved from their respective posts.

“I Killed Bapu” Film Produced To Defame Mahatma Gandhi, Claims Petitioner, Bombay High Appoints Panel To Preview

Case Title: Mohammed Atiq Ibrahim Ansari v. Central Board of Film Certification & Ors.

Citation: 2023 LiveLaw (Bom) 477

Bombay High Court appointed a three-member panel to preview the film “I Killed Bapu” to check for objectionable material or any other material with the potential of seriously threatening societal disharmony.

The film was recently released on an OTT platform.

A bench of Justices Sunil Shukre and Firdosh Pooniwalla appointed a committee comprising Chief Justices (Retd) Amjad Sayed, Justice Abhay Thipsay and veteran actor/director Amol Palekar to review the film and submit their report.

“We request the panel to take a preview of the film “ I Killed Bapu” at the place suggested by them and consider whether the film has any such objectionable material or has any potential of seriously threatening societal disharmony and submit its report accordingly to this court, within a period of two weeks of the preview taken by panel, which report shall be without prejudice to the rights and contentions of both sides,” the order stated.

Bombay High Court Calls For "Progressive" View On Obscenity, Says Wearing Short Skirts, Dancing Provocatively Not Per Se Obscene

Case Title: Lalit S/o Nandlal Bais v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 478

Women dancing provocatively in skimpy clothes or making gestures are not “obscene” or “immoral” acts which could annoy someone, the Bombay High Court's Nagpur bench has held.

A division bench of Justices Vinay Joshi and Valmiki Menezes quashed an FIR against five men accused under Section 294 (obscenity) of the IPC and under sections of the Maharashtra Police Act for indecency in public and the Maharashtra Prohibition Act, 1949.

The police filed an FIR after conducting a raid at the Banquet Hall of a Resort and Water Park where six women were allegedly found dancing in short skirts and the applicants were showering money on them. Both men and women were booked in the case.

“We are of the considered opinion that the acts of the Accused Nos.13 to 18 (female dancers) referred to in the complaint/FIR, namely wearing short skirts, dancing provocatively or making gestures that the Police Officials consider obscene cannot be termed to be per se obscene acts, which could cause annoyance to any member of the public.”

Bombay High Court Grants Relief To Minor's Father Booked After Failed Prosecution, Says Purpose Of POCSO Act Not To Discourage Victims

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 479

The Bombay High Court recently observed that the Protection of Children from Sexual Offences Act, 2012 is not meant to discourage victims from registering complaints due to the fear that they may be prosecuted for false evidence if the prosecution fails to prove its case.

Justice MS Karnik, while quashing a complaint against father of a minor victim booked for giving false evidence, observed –

“The object of the POCSO Act is to ensure justice to the victims who have suffered the offence...The purpose is to obligate reporting of cases and recording of offences and not to discourage victims with a sword of a prosecution hanging over them in case the prosecution is not successful in establishing the offence against the accused person/s. Section 22 provides for punishment for false complaint or false information. The present is not a case of making false complaint or providing false information. This is a case where the prosecution failed to prove the offence against the accused.”

The court held that merely victim and her father turning hostile in a case under the POCSO Act does not mean that they gave false evidence and are liable to be prosecuted under section 22 (punishment for false complaint or false information) of the Act, as there can be many reasons for a victim’s change in stance.

Bombay High Court Dismisses Uddhav Faction MLA Ravindra Waikar's Plea Alleging Discrimination In Development Fund Allocation To Opposition MLAs

Case Title: Ravindra Dattaram Waikar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 480

The Bombay High Court dismissed a plea filed by Shiv Sena (Uddhav Balasaheb Thackeray) group MLA Ravindra Waikar alleging gross discrimination in allocation of Maharashtra Local Development Funds assigned to the Members of the Legislative Assembly (MLA) and Members of the Legislative Council (MLC).

The MLD funds are meant for MLAs and MLCs to develop their respective constituencies are disbursed through the District Planning Commission by the State of Maharashtra.

The division bench comprising Justices Sunil Shukre and Rajesh Patil pronounced the order.

"We have found there is no sufficient material for us to test to fairness of the government's decision to allocate funds," it said.

Since the issue raised pertains to the administrative powers of the state, it can only be examined on Wednesbury's principle of "unreasonableness," the court said.

Child "Emotionally Attached" To Her: Bombay HC Appoints Aunt As Guardian Of 4-Yr-Old; Cites Mother's Psychological Issues, Father's Aggression

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 481

The Bombay High Court appointed the paternal aunt of a four-year-old boy as his legal guardian while allowing his parents to visit him frequently and occasionally take him for outings with the condition that the child returns to his aunt’s custody on the same day.

Justice RI Chagla observed that the child is extremely attached to his aunt and took note of the psychological issues faced by his mother as well as the aggressive behaviour of his father while granting custody of the child to his aunt.

NDPS Act | Non-Compliance With S.52A Does Not Automatically Entitle Accused To Bail, Stringent Conditions For Bail U/S 37 Still Apply: Bombay HC

Case Title: Mukesh Rajaram Chaudhari v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 482

The Bombay High Court recently held that an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 would not become entitled to bail merely because samples sent for forensic analysis were not drawn in front of a magistrate.

Justice MS Karnik refused bail to a man arrested for allegedly possessing commercial quantity of Codeine observing that the stringent conditions for bail under section 37 would continue to apply even if procedure prescribed under section 52A for drawing samples is not followed.

“At the stage when the court is concerned with the question of granting or refusing bail, this cannot be the sole consideration. It may be one of the relevant considerations but cannot be the sole consideration on the basis of which the moment it is shown that the procedure under Section 52A of the NDPS Act is not followed, the accused automatically becomes entitled to bail as a matter of right. The rigors of Section 37 of the NDPS Act would continue to apply”, the court held.

Other Developments

Bombay High Court Allows Virtual Hearings Across All Benches Following CJI DY Chandrachud's Rebuke

Following a rap from Chief Justice of India DY Chandrachud, the Bombay High Court has opened up virtual hearings for all its benches with immediate effect.

"It is hereby informed to all the stake holders that now each and every Court of the High Court of Bombay including its Benches can be accessed virtually by the stake holders, unless directed otherwise, in the cases listed before the Courts, for attending or participating in hearing virtually through hybrid video conferencing facility," the notice issued by Registrar (Judicial) SM Bhosale states.

Girls Toilets In Govt Schools In Dismal Condition, Constrained To Involve Judicial Officers For Inspections: High Court Raps Maharashtra Govt

The Bombay High Court pulled up the Maharashtra government for its inaction over the dismal condition of toilets for girls in government aided schools. The court chided the State for having to involve District Judges to ensure proper facilities in schools despite this being a function of the state government.

“What have you done? We have come to this stage that for something which is expected from you, we are involving PDJs (principal district judges) to inspect toilets of schools to ensure the girl children studying there have the facilities. We do not feel very happy to pass such orders involving PDJs in such matters”, a division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor said.

The court was referring to an order of the Aurangabad bench directing the formation of committees for each district headed by the Principal District Judge of the respective District Court to inspect the schools run by local authorities.

Inadequate Toilets, No Provision For Childcare: Reports To Bombay HC Reveal Lack Of Facilities For Females In Maharashtra Courts, State To Respond

Reports submitted before the Bombay High Court in a PIL highlight a severe lack of facilities for female lawyers, litigants, and staff in courts across the states of Maharashtra, Goa, as well as Union Territories of Daman and Diu and Dadra and Nagar Haveli.

The High Court Registrar submitted two reports before a bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor detailing issues faced by women in family courts and district courts of each district.

The court directed the petitioners and the state government to respond to the reports within a week and posted the matter for further consideration on December 1, 2023.

Bombay High Court Aurangabad Bench Likely To Get New Walkway, Free Wi-fi After Chief Justice Visits To Address Concerns About Court Building

Chief Justice Devendra Upadhyaya of the Bombay High Court in a meeting assured lawyers practicing in the Aurangabad bench that a new walkway to connect the two court buildings and a mobile tower will soon be constructed along with provision of free wi-fi in the court building.

This meeting was organized to address the lawyers’ protest against the shifting of some benches of the court to a new building about 120 meters away from the old one.

Chief Justice Upadhyaya and five senior judges - Justice RV Ghuge, Justice Mangesh S Patil, Justice VV Kankanwadi, Justice RG Avachat, and Justice NB Suryawanshi attended the meeting along with Jadhav and 24 other representatives of the advocates.