Bombay High Court Weekly Round-Up: September 25 To October 01, 2023

Milind Dashrath Narvekar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 453

Jigna Jitendra Vora v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 454

Shriram General Insurance Co. Ltd v. Sou. Jyoti Vithoba Nahire 2023 LiveLaw (Bom) 455

Pragati Pre Fab India Pvt. Ltd. Versus PCIT 2023 LiveLaw (Bom) 456

ABC v. XYZ 2023 LiveLaw (Bom) 457

SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar 2023 LiveLaw (Bom) 458

John Cockerill India Limited v. Sanjay Kamalakar Navare 2023 LiveLaw (Bom) 459

Shishirkumar Gopalchandra Padhy v. State of Maharashtra 2023 LiveLaw (Bom) 460

Guljama Shah Jahir Shah v. Shri Sadguru Kaka Stone Crusher 2023 LiveLaw (Bom) 461

Manoj Agarwal and Anr. v. Fashion TV Ltd. 2023 LiveLaw (Bom) 462

ABC v. State of Maharashtra 2023 LiveLaw (Bom) 463

Reports/Judgments

Bombay High Court Paves Way For Allotment Of Houses To Society Of High Court Employees

Case Title: Milind Dashrath Narvekar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 453

The Bombay High Court cleared the way for construction of housing units for a society of 398 state government employees working in the High Court.

A division bench of Justice GS Patel and Justice Kamal Khata directed MHADA to allot a 2,769.75 square meter plot of land to members of the society without inviting applications from other High Court employees or reserving 50 percent of the flats for public purpose.

The court opined that the petitioners agreed to scale down from their original demand, thus releasing additional areas for the availability of the 50 percent reservation. The court agreed that the imposition of 50 percent reservation condition would result in flats of a meaningless size and potentially exclude eligible members.

Bombay High Court Orders Passport Authorities To Reconsider Former Journalist Jigna Vora’s Plea For Passport

Case Title: Jigna Jitendra Vora v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 454

The Bombay High Court frowned at CBI’s unreasonable approach while opposing former journalist Jigna Vora’s plea for a fresh passport and directed passport authorities to consider her application afresh.

A division bench of Justices Revati Mohite Dere and Gauri Godse took exception to the CBI’s constant objection in granting her relief despite no pending appeals against her acquittal.

“The object of Section 437A is to secure the presence of an accused before the higher forum, after the acquittal. The petitioner had infact furnished PR Bond of Rs. 50,000/- before the trial Court. In the present case, the petitioner infact, appeared before the High Court, pursuant to the notice issued in the appeal filed by the CBI. In these circumstances, the CBI ought to have been fair and ought to have accordingly given a report, instead of stating that the case matter is still pending in CBI and her file should not be cleared, when infact, there was no proceeding pending before any Court of law, at the relevant time”, the court observed.

Vora, a former deputy editor of Asian Age newspaper was accused by the CBI of giving crucial information about journalist J Dey to alleged gangster Chhota Rajan, which led to the senior journalist’s murder in June 2011. In 2018, a special court found Rajan and eight others guilty under sections 302, 120-B of the IPC and sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (MCOCA) and sentenced them to life imprisonment for Dey's murder. Vora and one more accused were acquitted. Her acquittal was later upheld by the High Court in 2019.

MV Act | Award Can Be Stayed Even If Insurer's Application For Condonation Of Delay In Filing Appeal Is Pending: Bombay High Court

Case Title: Shriram General Insurance Co. Ltd v. Sou. Jyoti Vithoba Nahire

Citation: 2023 LiveLaw (Bom) 455

The Bombay High Court held that an ad-interim/interim stay can be granted on an award passed under the Motor Vehicles Act (MV Act) even if the appellants’ application for condonation of delay in filing the First Appeal against such award is pending.

Justice Abhay Ahuja held was dealing with interim applications filed by three insurance companies and one individual in separate first appeals seeking a stay on execution of awards passed under the MV Act).

The applicants were seeking to file appeals challenging judgments and awards passed under the Motor Vehicles Act. These appeals, filed under Section 173 of the MV Act, were time-barred, i.e., they were filed after the stipulated limitation period.

Assessee Entitled To The Benefit Of VsV Act During The Pendency Of Prosecution Not Involving 'Tax Arrears': Bombay High Court

Case Title: Pragati Pre Fab India Pvt. Ltd. Versus PCIT

Citation: 2023 LiveLaw (Bom) 456

The Bombay High Court directed the department to decide the application filed by the assessee in conformity with the Direct Tax Vivad Se Vishwas Act 2020.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that the assessee had paid self-assessment tax but has not paid the demand made due to reassessment or reopening of the assessment and has challenged the order now pending before ITAT. As permissible under the Office Memorandum dated July 31, 2017, the petitioner had even deposited 20% of the demand and, hence, is not an assessee in default.

The court held that under Section 9(a)(ii) of the DTVSV Act, the only exclusion visualised is a pendency of prosecution in respect of tax arrears relatable to an assessment year as on the date of filing the declaration and not a pendency of prosecution in respect of an assessment year on any issue.

The court found that the assessee has paid self-assessment tax but has not paid the demand due to reassessment and has challenged the order which is now pending before ITAT and consequently, paid the entire amount, accordingly, could not be treated as ‘Assessee in default’.

Bombay High Court On Hindu Marriage Act | Divorcing A Spouse Suffering From Epilepsy Is Not Legally Feasile

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 457

Spouse suffering from epilepsy cannot be ground for divorce under Section 13(1)(iii) of the Hindu Marriage Act, the Bombay High Court observed and upheld a family court order refusing divorce to a man.

A division bench at Nagpur comprising Justices Vinay Joshi and Valmiki Menezes observed,

"…the condition of “epilepsy” is neither an incurable disease nor can it be considered a mental disorder or a psychopathic disorder, for making a ground under Section 13(1)(iii) of the Hindu Marriage Act."

The court further said medical evidence doesn’t support the husband’s stand that epilepsy would be an impediment to the spouses living together.

Cause Of Action Arose Partly In Mumbai: Bombay High Court Allows Akasa Air To Proceed In Mumbai Against Pilots Who Left Without Serving Notice Period

Case Title: SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar

Citation: 2023 LiveLaw (Bom) 458

The Bombay High Court allowed a leave petition filed by Akasa Air, a low-cost airline, seeking permission to proceed against five pilots who resigned from the company without serving their notice period.

Justice SM Modak observed that part of the cause of action arose within the jurisdiction of Bombay High Court as the resignations were accepted by the company in Mumbai.

“...place where resignation was received can be part of cause of action. Sending a resignation through email cannot be sufficient. Ultimately, the company has to take a call on that. Either company may refuse to accept the resignation, or may accept it conditionally, or may accept it for future date. If these options are available to employer and these options can be exercised only when email (of resignation) is received, part of cause of action has arisen in Mumbai”, the court observed.

Unstamped Agreement, Quantum Not Disputed, Court Can Collect While Deciding Section 11 Petition: Bombay High Court

Case Title: John Cockerill India Limited v. Sanjay Kamalakar Navare

Citation: 2023 LiveLaw (Bom) 459

The High Court of Bombay held that the Court exercising power under Section 11 of the A&C Act can itself determine and collect the unpaid or deficit stamp duty payable upon the unstamped or insufficiently stamped agreement.

^[1] to hold that the Court would be within its powers to determine and collect the unpaid stamp duty, especially, when the quantum of amount to be paid is not seriously disputed. It held that the Court can either impound the agreement and sent it to the Collector of Stamps and direct the parties to pay the requisite stamp duty along with the penalty or itself perform such a task through an officer.

Some Accountability Should Be Fixed On Courts To Complete Trial In Cases Of Prolonged Incarceration: Bombay High Court

Case Title: Shishirkumar Gopalchandra Padhy v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 460

The Bombay High Court expressed strong displeasure at the lack of effort by prosecuting agencies and trial judges to ensure timely completion of criminal trials resulting in prolonged incarceration of the accused.

Justice Bharati Dangare granted bail to a murder accused incarcerated for over seven years in a case requiring examination of just 10 witnesses. Despite expediting the trial, a year ago, there was no progress, the court noted.

“Time and again, I have expressed that some accountability deserves to be fixed and when I say accountability it is not only procedural one but possibly on the courts, who are in seized of such trials and particularly when the accused are incarcerated for such a long time.”

Magistrate Not Obligated To Provide Reasons For Amount Of Interim Compensation Awarded To Complainant In Cheque Dishonour Case: Bombay HC

Case Title: Guljama Shah Jahir Shah v. Shri Sadguru Kaka Stone Crusher

Citation: 2023 LiveLaw (Bom) 461

The Bombay High Court held that the trial court is not obligated to provide reasons for the amount of interim compensation in cheque dishonour cases, as long as the requirements provided in Section 143A of the Negotiable Instruments Act, 1881 (NI Act) are met.

Justice Anil Pansare of the Nagpur Bench observed that satisfaction of Section 143A is reason enough for awarding 20 percent interim compensation to the complainant and requiring trial court to give additional reasons for the amount would defeat the purpose of the section.

“To expect the learned Magistrate to assign additional reasons, in a way, will defeat the amendment for the reason that every order passed under Section 143A will then be challenged on the ground that there are no additional reasons assigned by the learned Magistrate and if additional reasons are assigned, the challenge will be that the reasons assigned are not adequate etc. thereby opening flood-gates of litigations”, the court observed.

Bombay High Court Temporarily Restrains Fashion TV From Executing Franchise Agreements In Lucknow Without Making Offer To Current Franchisees

Case Title: Manoj Agarwal and Anr. v. Fashion TV Ltd.

Citation: 2023 LiveLaw (Bom) 462

The Bombay High Court issued an ad-interim direction restraining fashion media company Fashion TV Limited (FTV), from executing franchise agreements in Lucknow with third parties without first offering the franchise to their current franchisees.

Justice Manish Pitale observed that prima facie, despite a First Right of Refusal (FROR) clause in the franchise agreement, FTV executed another franchise agreement with third parties.

“a specific Right of First Refusal in the territory i.e. territory of Lucknow for the period of the agreement, was granted to the petitioners. The effect of the said clauses makes out a prima facie case in favour of the petitioners that if the respondent intended to enter into a further franchisee agreement, the petitioners ought to have been first offered such a franchisee and if the petitioners refused to accept the offer, the respondent could engage with third party”, the court observed.

Bombay High Court Orders Compensation To Music Teacher Illegally Detained In Bailable Offence, Allegedly Stripped In Custody

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 463

The Bombay High Court ordered Rs. 2 lakh compensation for a music teacher who was illegally detained by the Tardeo Police and allegedly stripped naked to humiliate him in a bailable offence, for violation of his fundamental right under Article 21 of the Constitution i.e. right to live with dignity.

Justice Revati and Gauri Godse noted how the right to compensation is “palliative” against the unlawful acts of State machineries, who claim to act in public interest and then use the State’s powers as a shield to protect themselves.

“The facts as narrated, smacks of police high handedness. It smacks of their insensitivity. It reveals their lack of knowledge of the legal provisions and judgments of the Apex Court, vis-a-vis grant of bail. This action of the police has resulted in unjustified trauma-physical, emotional and mental to the petitioner’s husband.”

The court ordered for State to make the payment of Rs. 2 lakh but for the money to be recovered from the salaries of concerned officers of Tardeo Police Station and Saat Rasta Lock-up after liability is fixed following a detailed enquiry. The court ordered the inquiry against officers despite their unconditional apology.

Other Developments

IT Rules Amendment | Bombay High Court Doubts On the Necessity Of Fact Checking Unit For The Removal Of Fake News

The Bombay High Court wondered why the amendment to Information Technology Rules, 2021 providing for a government Fact Check Unit (FCU) is required when the FCU cannot compel social media platforms to take down content flagged as false, fake, or misleading.

Justice GS Patel asked Solicitor General Tushar Mehta, who began arguments for the central government today, to reconsider his submission that a social media intermediary can choose not to take down flagged content.

"See you have the PIB (Press Information Bureau) that has its own Twitter account. If it can do a fact check and publish, then why the amendment? I suspect, that if the FCU says this is false, the compliance by the intermediary is required. Otherwise, it makes no difference...why do you need the amendment unless you are going to compel (intermediaries to remove it)?"

Defamation Case Filed By A BJP Leader Against Rahul Gandhi | Bombay High Court Sought The Advocate General’s assistance

The Bombay High Court sought the Advocate General’s assistance in the petition moved by Congress leader Rahul Gandhi to quash the defamation case filed by a BJP leader against him for his "commander in thief" social media post and video from 2018.

Justice Sarang Kotwal noted that Gandhi had raised significant questions of law in his plea, including a legal bar under Section 199 of the CrPC for complainant Mahesh Shrishrimal to file the complaint.

Intermediaries Bound To Take Action On Content Flagged By Fact-Check Unit, May Not Take Down But Put 'Disclaimer': Centre To Bombay HC

The Solicitor General representing the Ministry of Electronics and IT clarified that an intermediary must either pull down information flagged by the government’s Fact Check Unit or put a disclaimer.

The intermediary was not at liberty to do “nothing” about content flagged as fake, false or misleading by the government, SG Tushar Mehta added, addressing a query raised by the Bombay High Court.

Construction Of 100 Bed Hospital In Thane Conceived 15 Yrs Ago Still Incomplete: Bombay High Court Orders Investigation

The Bombay High Court pulled up the Thane Municipal Corporation for inordinate delay in construction of a 100-bedded hospital in Kausa, Mumbra, conceived in 2008. The amount sanctioned for the project has increased to over Rs. 122 Crores from Rs. 10 Crores sanctioned in 2008, but the project remains incomplete.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor in a PIL filed by the Association For Protection of Civil Rights, appointed a Court Commission to investigate the delay. The Commission will comprise of a doctor nominated by the Dean of JJ Hospital, a Civil Engineer not below the rank of Executive Engineer nominated by the Secretary, Maharashtra Public Works Department, and Meenaz Kakalia, a practicing lawyer from the HC.

Bombay High Court To Pronounce Verdict In Challenge To IT Rules Amendment On December 1, Centre Won't Notify Fact Check Unit Till Then

The Bombay High Court will pronounce on December 1, 2023 its judgement on a clutch of petitions challenging the Rule 3(i)(II)(C) of the IT Amendment Rules, 2023 enabling a government established Fact Check Unit to identify false, fake or misleading information about itself on social media.

Consequently, social media intermediaries like Facebook, Instagram or X will then have to either pull down the flagged content or add a disclaimer at their own risk according to the Ministry of Electronics and Information & Technology.

The division bench of Justice GS Patel and Justice Neela Gokhale reserved the pleas of political satirist Kunal Kamra, News Broadcasters and Digital Association, Editor's Guild of India, and Association of Indian Magazines for final orders.

Bombay HC Temporarily Protects Firm Of MLA Belonging To Sharad Pawar Faction Against Closure Order By Maharashtra Pollution Control Board

The Bombay High Court granted temporary relief to NCP MLA Rohit Pawar and directed Maharashtra Pollution Control Board to not effect till October 6, a closure order issued against Baramati Agro Ltd, a firm controlled by him.

The MPCB order was issued on Wednesday and served early on Thursday seeking closure of the unit within 72 hours. Baramati Agro challenged the order on the ground that the board’s decision was passed under political influence to “pressurize” Rohit as he was part of Sharad Pawar’s party.

After the matter was mentioned, Justices Nitin Jamdar and Manjusha Deshpande posted it for further hearing on October 6 and granted time against closure till then.