Bombay High Court Weekly Round-Up: September 11 To September 17, 2023

Iqra Maqsood Ahmed Ansari v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 427

Union of India and Anr. v. Umraobi W/o Saiyed Munir and Ors. 2023 LiveLaw (Bom) 428

Shri Durga Parmeshwari Seva Mandal & Ors. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 429

Ashwin Bharat Khater v. Urvashi Bharat Khater 2023 LiveLaw (Bom) 430

ABC v. XYZ 2023 LiveLaw (Bom) 431

Rodu Bhaga Wagh v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 432

Govandi New Sangam Welfare Society v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 433

Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors. 2023 LiveLaw (Bom) 434

Registrar Judicial, High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 435

ABC v. XYZ 2023 LiveLaw (Bom) 436

Faizal Hasamali Mirza @ Kasib v. State of Maharashtra 2023 LiveLaw (Bom) 437

ABC v. XYZ 2023 LiveLaw (Bom) 438

State of Maharashtra v. Baburao Ukandu Sangerao 2023 LiveLaw (Bom) 439

M v. Navi Municipal Corporation and Anr. 2023 LiveLaw (Bom) 440

Suresh Kevalram Khemani & Ors. v. Central Bureau of Investigation, Economic Offences Unit-I (Eo-1) & Ors. 2023 LiveLaw (Bom) 441

Eversmile Construction Company Pvt Ltd & Anr. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 442

Reports/Judgments

Bombay High Court Imposes ₹3 Lakh Cost On Scrutiny Committee For Delay In Issuing Student’s Caste Validity Certificate

Case Title: Iqra Maqsood Ahmed Ansari v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 427

The Bombay High Court imposed cost of Rs. 3 Lakhs on the Chairperson and members of District Caste Certificate Scrutiny Committee, Mumbai Suburban for "extreme stress and inconvenience" caused to a student due to delay in issuance of her caste validity certificate.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla held that the delay, solely attributable to the Scrutiny Committee, should not cause injustice to the student who couldn’t submit the certificate to the college authorities in time for her admission.

44 Years After Railway Accident, Bombay High Court Upholds ₹51K Compensation To Mother Of Deceased

Case Title: Union of India and Anr. v. Umraobi W/o Saiyed Munir and Ors.

Citation: 2023 LiveLaw (Bom) 428

The Bombay High Court upheld an award of compensation of Rs. 51,000 to the mother of a 24-year-old man who died in a railway accident 44 years ago involving the collision of a truck and a train engine.

Justice PK Chavan observed that the accident was caused due to the negligence of railway staff.

“It is clearly an act of negligence on the part of the employees of the appellants as it appears from the evidence that there was no proper communication between the switchman and the gateman as well as by the concerned Railway station. Had there been proper communication, there would have been an advance intimation to the gateman about passing of the engine”, the court observed.

No Fundamental Right To Privately Create Immersion Pond In Public Park For Ganesh Visarjan: Bombay High Court

Case Title: Shri Durga Parmeshwari Seva Mandal & Ors. v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 429

The Bombay High Court dismissed the plea filed by a former Nationalist Congress Party (NCP) corporator seeking to organise Ganpati immersion in a private artificial pond at a municipal garden at Ghatkopar.

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

“No person, let alone a Mandal, has any fundamental — or any other — right to privately create an immersion pond in a public park maintained by the Municipal Corporation. That permission is required, and that this is in the discretion of the Municipal Corporation, is not just undeniable, but is not disputed.”

Denying Access To Own House Amounts To Denial Of Basic Amenities: Bombay High Court Revokes Gift Deeds After Son Fails To Maintain Mother

Case Title: Ashwin Bharat Khater v. Urvashi Bharat Khater

Citation: 2023 LiveLaw (Bom) 430

Observing that the denial of access to one's own house amounts to denial of basic amenities, the Bombay High Court upheld the Senior Citizens Maintenance Tribunal’s order revoking two gift deeds executed by an elderly woman in favour of her son and directed the son and daughter-in-law to vacate the subject property.

Justice Sandeep V Marne held so upon finding that the son had failed to perform his duty to provide basic amenities and physical needs to his widowed mother.

“The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother. It was never son’s property. He had no right to seek gift thereof”, the court observed.

Bombay High Court Appoints Children Of Former Attorney General As Guardians Of Senior Citizen Sibling Having Mental Illness

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 431

The Bombay High Court allowed a plea by the children of a former Attorney General and declared them as guardians of one of their siblings under Section 7 of the Guardian and Wards Act, 1890. The section was originally meant for guardianship of minors.

Justice Riyaz Chagla widened the scope of Section 7 of the Act to allow guardianship of an adult suffering from a mental handicap noting a lacuna in the existing Mental Healthcare Act.

Bombay High Court Criticises Trial Judge For Awarding Lesser Than Minimum Sentence To POCSO Convict

Case Title: Rodu Bhaga Wagh v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 432

The Bombay High Court criticised a Special Judge under the Protection of Children from Sexual Offences Act (POCSO Act) for awarding 3-year imprisonment to a man convicted for attempting to rape a child, observing that the Act calls for a greater punishment.

Justice Bharati Dangre observed that the prosecution neither brought this to the notice of the trial court, nor is there any recommendation, made for filing of an appeal, on behalf of the state against lesser sentence.

It is not open to a Court to impose a punishment lesser than the minimum that is prescribed, the court said.

Set Up New Bio-Medical Waste Plant In Two Years Or Face Action: Bombay High Court Warns BMC

Case Title: Govandi New Sangam Welfare Society v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 433

The Bombay High Court directed that work on a new facility to dispose of bio-medical waste should be commissioned within two years otherwise and all those involved will be held accountable for failure on their part.

According to the petition filed by Govandi New Sangam Welfare Society, the incinerator facility owned by SMS Enviroclean Pvt. Ltd is a cause of major pollution in Govandi, affecting the residents of the area.

“In view of the aforesaid, we direct that the new incinerator facility shall be commissioned within two years from today. All the authorities, including respondent no.5, shall be held accountable in case there is any lapse on their part in establishing the new incinerator facility within two years from today”, the court held

Comity Of Courts Not Weapon To Leave Litigant Remediless: Bombay High Court Stays Singapore Court Order Against Shaadi.com CEO Anupam Mittal

Case Title: Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors.

Citation: 2023 LiveLaw (Bom) 434

The Bombay High Court temporarily stayed the enforcement of an anti-suit permanent injunction order issued by the Singapore High Court against Anupam Mittal, the founder and CEO of Shaadi.com.

The Singapore High Court order restrained Mittal from proceeding with his petition before the National Company Law Tribunal (NCLT) alleging oppression and mismanagement of People Interactive (India) Pvt. Ltd, the parent company of Shaadi.com.

Justice Manish Pitale observed that disputes regarding oppression and mismanagement are non-arbitrable in India and the principle of comity of courts cannot prevent a litigant from pursuing the only available legal remedy.

Bombay HC Orders Aurangabad Collector To Provide Proper Boats, Life Jackets To Students Crossing Backwaters On Thermocol Rafts To Reach School

Case Title: Registrar Judicial, High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 435

The Bombay High Court directed the District Collector, Aurangabad to provide proper boats with specialised operator, life jackets, and rescue air tubes to children rowing thermocol rafts with makeshift oars to cross backwaters of Jayakwadi dam and reach school.

A division bench of Justice Ravindra Ghuge and Justice YG Khobragade sitting at Aurangabad recommended having at least two boats to operate in multiple shifts, enabling 24/7 access to transportation.

Husband Affluent, Wife's Unsubstantiated Allegations Lowered Reputation: Bombay HC Rules Family's Social Status Relevant To Determine 'Cruelty'

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 436

A family’s social strata would be a relevant consideration in deciding divorce cases on grounds of “cruelty”, the Bombay High Court held.

Two years of marriage and 14 years of separation later the High Court granted a businessman divorce from his wife on grounds of ‘cruelty’ but upheld maintenance granted to the woman.

A division bench of Justices Nitin Sambre and Sharmila Deshmukh observed,

“While considering the conduct of the Respondent in context of ‘cruelty’ as contemplated under the provisions of Section 13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the society to which the Petitioner belongs will also be relevant.”

Delay Beyond 90 Days For Appeal Under NIA Act Can Be Condoned, Rules Bombay High Court; Disagrees With Views Of Kerala & Calcutta HCs

Case Title: Faizal Hasamali Mirza @ Kasib v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 437

The Bombay High Court held that an appeal against a trial court’s order can be entertained by the appellate court even after the lapse of statutory period of 90 days under Section 21(5) of the National Investigating Agency(NIA) Act, 2008.

The division bench of Justices Revati Mohite Dere and Gauri Godse read down the 2^nd proviso to Section 21 (5) of the NIA Act and allowed an application filed by a terror accused seeking to condone the delay of 838 days in filing his bail appeal in HC.

“Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted. If despite ‘sufficient cause’ being shown, if an appeal under Section 21(5), 2nd proviso cannot be entertained, this would lead to depriving an accused of his fundamental right guaranteed to him under Article 21 of the Constitution.”

“If the provision were to be held mandatory…the doors of justice will be shut, leading to travesty of justice, which cannot be permitted by Courts of Law,” the court added

Mother 'Illegally Detaining' Child By Not Returning Him To Native Country: Bombay High Court Grants Custody Of 3-Yr-Old US Citizen To Father

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 438

The Bombay High Court granted the custody of a three-year-old boy, who is a US citizen by birth, to his United States-based father seeking the return of his child to the US in a habeas corpus writ petition.

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse held that the mother’s unilateral refusal to return the child to US without a valid or justifiable reason amounted to illegally detaining the child.

Bombay High Court Commutes Man’s Death Sentence To 25 Yrs Imprisonment For Rape, Murder Of 6-Yr-Old

Case Title: State of Maharashtra v. Baburao Ukandu Sangerao

Citation: 2023 LiveLaw (Bom) 439

The Bombay High Court commuted the death sentence to 25-year fixed-term imprisonment for a 36 years old labour, convicted for raping and murdering a six-year-old child.

The division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase observed that the trial court did not consider mitigating factors, including the convict's background and the absence of any prior criminal record while awarding the death penalty.

The court emphasised that the trial court must consider whether life imprisonment is unquestionably ruled out and must provide "special reasons" specific to the case for award of death penalty. However, in the present case, the trial court neither considered alternate sentence nor assigned any special reason for the death sentence, the court observed.

Bombay High Court Comes To Aid Of Woman Stuck With Ex-Husband’s Name Wrongly Added To Child’s Birth Certificate

Case Title: M v. Navi Municipal Corporation and Anr.

Citation: 2023 LiveLaw (Bom) 440

Expressing surprise at the Navi Mumbai Municipal Corporation’s unwillingness to correct the father’s name on the birth certificate of a 3-year-old, the Bombay High Court directed the Municipal body to immediately replace the woman’s ex-husband’s name with the child’s biological father’s name on the birth certificate.

“We confess we are unable to understand the approach of the Municipal Corporation and, for that matter, that of the JMFC,” Justice GS Patel and Kamal Khata observed regarding the mother’s failed attempts before the NMMC and magistrate.

Supreme Court in ABC v. State (NCT of Delhi) said that whenever a single parent or an unwed mother applies for a birth certificate the only requirement should be that she should furnish an affidavit to that effect. The corrected birth certificate must then be issued.

The High Court observed these case laws couldn’t have been overlooked by the NMMC and JMFC. “This is the binding law declared by the Supreme Court and the Bombay High Court. The Municipal Corporation is not at liberty to say “there is no law.” There is indeed a law.”, said the court

Bombay High Court Judge Recuses After Receiving Letter Alleging Bias, Orders CBI To Probe Sender

Case Title: Suresh Kevalram Khemani & Ors. v. Central Bureau of Investigation, Economic Offences Unit-I (Eo-1) & Ors.

Citation: 2023 LiveLaw (Bom) 441

Justice Bharati Dangre of the Bombay High Court recused from hearing a criminal revision application after she received a letter alleging bias but assigned reasons for her recusal and urged CBI action in a strongly worded order.

“It was open for me to recuse, without disclosing the reason, but it is high time that some accountability is attributed to the disgruntled elements, who continue to haunt the system by their unscrupulous acts and walk away, without waiting for consequences of their intimidating action, once the Judge recuse from the matter and it is time to show that the system to continue it’s unfinching loyalty to ‘Justice’.”

The judge took the letter on the record, ordered a copy to be sent to the Registrar and further urged the CBI to take cognisance of this “judicial impropriety” and conduct and an inquiry into the incident.

The judge noted that it wasn’t the first time “communications casting aspersions” have been addressed to the “dispensers of justice.” However, it was necessary to show people using such intimidation tactics that the system continues its unflinching loyalty to ‘Justice.’

Private Property Cannot Be Taken Away For Public Purpose Without Compensation Bombay High Court

Case Title: Eversmile Construction Company Pvt Ltd & Anr. v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 442

The Bombay High Court granted compensation to a company in lieu of its land used for the elevated Sahar Elevated Road which allows connectivity to the Chhatrapati Shivaji Maharaj International Airport.

“We see no possibility at all in law of private property being taken away for a public purpose without some form of compensation, whether in cash or in kind (in the form of TDR/a DRC), at least not without running afoul of Article 300A of the Constitution of India,” the division bench of Justices Gautam Patel and Kamal Khata observed.

In an “utterly unique situation”, both planning authorities - the Mumbai Metropolitan Region Development Authority (MMRDA) and Brihanmumbai Municipal Corporation (BMC) claimed they had no control over the 730 sq meter plot used for the road. The portion is part of a larger land parcel of 22,000 sq meters.

Therefore, the question before the court was who would compensate the petitioner.

In a subsequent resolution the bench directed the Brihanmumbai Municipal Corporation to grant Eversmile Construction Company Pvt Ltd. the applicable Transferable Development Rights (TDR) in lieu of its land.

Other Developments

Won't Permit Idol Immersion In Aarey Lakes: Aarey Colony CEO Tells Bombay High Court Ahead Of Ganpati Visarjan

The Bombay High Court recorded a statement by the CEO of Aarey colony that no permission was being accorded to the BMC for idol immersion in the lakes of Aarey.

A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor further stated,

“We also direct that for safer immersion of the idols adequate arrangements shall be made by the different Urban Local Bodies throughout the City of Mumbai and in the suburbs lying in its vicinity in terms of the guidelines issued by the Central Pollution Control Board in its Notification dated 12th May 2020.”

Jet Airways Founder Naresh Goyal Approaches Bombay High Court Against ED Arrest In Rs. 538 Crore Money Laundering Case

Jet Airways founder and former chairman Naresh Goyal approached the Bombay High Court to challenge his recent arrest by the Enforcement Directorate (ED) in an alleged Rs. 538 Crores money laundering case.

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse will hear the petition on September 20.

Goyal has challenged the arrest as well as the orders issued by the special court under the Prevention of Money Laundering Act (PMLA) remanding him to the custody of the ED and subsequently to judicial custody.