Bombay High Court Monthly Digest: August 2022 [Citations 275 – 312]

Nominal Index

Citations 2022 LiveLaw (Bom) 275 to 2022 LiveLaw (Bom) 312

Vikas Balwant Alase & Ors. v. Union of India through Secretary & Ors. with connected matters 2022 LiveLaw (Bom) 275

Smita Pansare v. State of Maharashtra 2022 LiveLaw (Bom) 276

Mr. Ashwin Ashokrao Karokar v. Mr. Laxmikant Govind Joshi 2022 LiveLaw (Bom) 277

Xyz v. The State of Maharashtra & Ors (WP 9012 of 2022) 2022 LiveLaw (Bom) 278

Rajendra R. Singh v. Assistant Commissioner of Income Tax and Ors. 2022 LiveLaw (Bom) 279

Sukoon Construction Pvt. Ltd v. The Collector of Stamp & Anr. 2022 LiveLaw (Bom) 280

Smarte Solutions Pvt. Ltd. v. Union of India and Ors. 2022 LiveLaw (Bom) 281

Vasant v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 282

Kirit Somaiya v. State of Maharashtra 2022 LiveLaw (Bom) 283

Novafor Samuel Inoamaobi v. The State of Maharashtra 2022 LiveLaw (Bom) 284

B. Chopda Construction Private Limited v. Union of India and Ors. 2022 LiveLaw (Bom) 285

Obedullah Abdul Rashid Radiowala v. State of Maharashtra 2022 LiveLaw (Bom) 286

Novafor Samuel Inoamaobi v. The State of Maharashtra 2022 LiveLaw (Bom) 287

Mohammad Rafique Mohammad Saleem Siddiqui v. The State of Maharashtra 2022 LiveLaw (Bom) 288

Vanashakti & Anr v. Revenue & Forest Dept, State of Maharashtra & Ors 2022 LiveLaw (Bom) 289

Chirag R. Mehta v. The State Of Karnataka 2022 LiveLaw (Bom) 290

Prathamesh v. Union of India and Anr. 2022 LiveLaw (Bom) 291

Raju Jokhanprasad Gupta v. State of Maharashtra 2022 LiveLaw (Bom) 292

S. J. Enterprises & Anr. v. Union of India 2022 LiveLaw (Bom) 293

Vishwajit Sud & Co. v. L & T Stec JV, Mumbai 2022 LiveLaw (Bom) 294

Siddhi Real Estate Developers v. State of Maharashtra & Anr. 2022 LiveLaw (Bom) 295

Vipul Chitalia v. CBI and Anr. 2022 LiveLaw (Bom) 296

Subodh M Joshi v. Municipal Corporation of Greater Mumbai & Ors. 2022 LiveLaw (Bom) 297

Ashok Palav Coop. Housing Society Ltd. v. Pankaj Bhagubhai Desai & Anr. 2022 LiveLaw (Bom) 298

Shyamwar Pinturam Rai v. CBI & Anr. 2022 LiveLaw (Bom) 299

Aditya Birla Sun Life Insurance Co. Ltd. v. Insurance Ombudsman & Anr. 2022 LiveLaw (Bom) 300

Madhukar Makaji Mudgul v. The State of Maharashtra 2022 LiveLaw (Bom) 301

Rahul Uttam Phadtare v. Sarika Rahul Phadtare; 2022 LiveLaw (Bom) 302

National Highways Authority of India v. The Additional Commissioner, Nagpur and Ors.; 2022 LiveLaw (Bom) 303

MEP Infrastructure Developers Ltd. & Ors. v. MSRDC Sea Link Ltd. & Ors.; 2022 LiveLaw (Bom) 304

Farzin Ardeshir Adel & Ors. v. MCGM & Ors. and Jatin Bhankharia v. MCGM & Ors.; 2022 LiveLaw (Bom) 305

Phoenix Arc Pvt. Ltd. v. State of Maharashtra; 2022 LiveLaw (Bom) 306

Ramchandra Shrimant Bhandare v. The State of Maharashtra; 2022 LiveLaw (Bom) 307

BXIN Office Parks India Pvt. Ltd. v. Kailasa Urja Pvt. Ltd.; 2022 LiveLaw (Bom) 308

Anand I Power Ltd. v. Chief Controlling Revenue Authority & Ors.; 2022 LiveLaw (Bom) 309

Nizar Noorali Rangara and Anr. v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 310

USP Studios Pvt. Ltd. v. Ganpati Enterprises & Ors. 2022 LiveLaw (Bom) 311

Relcon Infroprojects Ltd. & Anr. v. Ridhi Sidhi Sadan, Unit of Shree Ridhi Co. Op. Housing Society Ltd. & Ors. 2022 LiveLaw (Bom) 312

Reports

Bombay High Court Disallows Maratha Community Candidates To Avail Retrospective Benefits Under EWS Category In MSEDCL Recruitment Drive

Case Title- Vikas Balwant Alase & Ors. v. Union of India through Secretary & Ors. with connected matters

Citation – 2022 LiveLaw (Bom) 275

The Bombay High Court declared as "unjustified" and "Illegal" Maharashtra Government's decision to allow members of the Maratha community to avail benefits under the Economically Weaker Section (EWS) category midway through an electricity distribution recruitment drive.

The court said that Maratha community candidates (SEBC candidates) were aware that their selection process would be subject to Supreme Court's order in the Maratha Reservation matter.

So once SC's interim order barred them from being considered under the reserved category of MSEBC Act in 2020, the State couldn't have issued a GR permitting eligible candidates to be considered under the EWS reservation.

Govind Pansare Murder: Bombay High Court Directs Transfer Of Probe To Anti-Terrorism Squad

Case Title - Smita Pansare v. State of Maharashtra

Citation - 2022 LiveLaw (Bom) 276

The Bombay High Court directed the transfer of investigation into the 2015 murder of communist leader Govind Pansare from the Special investigations Team to the ATS's Anti-Terrorism Squad, seven years after the leader was shot at on his morning walk.

The bench observed that it has been monitoring the SIT's investigation in the case since 2016, but no major headway is made and sharpshooters are still absconding.

"Despite the efforts of the Officers of SIT, there is no breakthrough. The wait for the family of Comrade Pansare has been long, for almost seven years. There is a legitimate expectation not only for the family of Comrade Pansare, but also the public at large, to see that the perpetrators of the ghastly crime, are brought to book. And, this is the responsibility of the investigating machinery, which exists to preserve law and order."

S.143A NI Act | Court Not Obliged To Direct Payment Of Interim Compensation In Cheque Bounce Cases: Bombay High Court

Case Title- Mr. Ashwin Ashokrao Karokar v. Mr. Laxmikant Govind Joshi

Citation - 2022 LiveLaw (Bom) 277

The Bombay High Court has said that courts don't have a duty to grant interim compensation to the complainant in a cheque bounce case. If interim compensation is granted, the judge has to record reasons for determining the amount of interim compensation.

The court said that the provisions of section 143-A of the Negotiable Instruments Act, 1881 are directory rather than mandatory.

Bombay High Court Refuses Mentally Challenged Rape Victim To Terminate 35-Week Pregnancy Citing Health Risk

Case Title – Xyz v. The State of Maharashtra & Ors (WP 9012 of 2022)

Citation – 2022 LiveLaw (Bom) 278

The Bombay High Court has refused to allow a mentally challenged rape victim to terminate her 35-week (8.5 months) pregnancy after a board of medical experts opined it was a high risk to maternal health.

A division bench of Justices Gangapurwala and AS Doctor said that the court would be guided by the report of the Expert Committee, but since the pregnancy was a result of rape, certain directions were necessary:

The investigator should remain present at the time of delivery so that DNA samples can be collected soon after the delivery and be used during the trial.

If the child is born alive, the State should take care of the child in accordance with guideline under a 2019 landmark judgement on Medical Termination of Pregnancy.

Recovery Of Tax Dues Of A Company From Its Directors Under Section 179 Of Income TaxAct, Cannot Be Invoked Casually: Bombay High Court

Case Title - Rajendra R. Singh v. Assistant Commissioner of Income Tax and Ors.

Citation – 2022 LiveLaw (Bom) 279

The Bombay High Court ruled that exercise of jurisdiction under Section 179 of the Income Tax Act, 1961 against the director of a public company, to recover the tax dues of the said company, is violative of the principles of natural justice, where the Income Tax Authority has failed to give any opportunity of hearing to the director before applying the principle of 'lifting the corporate veil'.

The Bench, consisting of Justices Dhiraj Singh Thakur and Abhay Ahuja, held that the recovery procedure under Section 179 against the directors of the assessee company cannot be resorted to casually.

Maharashtra Stamp Act | Collector Has No Power To Revise Stamp Duty Once It's Already Been Levied & Paid: Bombay High Court

Case Title – Sukoon Construction Pvt. Ltd v. The Collector of Stamp & Anr.

Citation – 2022 LiveLaw (Bom) 280

Bombay High Court held that the Collector of Stamps under the Maharashtra Stamp Act cannot revise stamp duty once it has been levied and paid.

Justice Bharati Dangre while referring to the observed that in Maharashtra Stamp Act, 1958, once the Collector certifies an endorsement on the document depicting payment of full duty, it becomes effective and final and it is not open for him to reopen the adjudication.

The court held that the Collector had become "functus officio" after endorsing the deed and had no further powers to revise the duty. The power of revising the duty is, at the most, available with the Chief Controlling Revenue Authority under Section 53-A of the Stamp Act.

Exporter Not Required To Hold IEC Number To Avail Benefits Under 'Service Exports From India' Scheme: Bombay High Court

Case Title – Smarte Solutions Pvt. Ltd. v. Union of India and Ors.

Citation – 2022 LiveLaw (Bom) 281

The Bombay High Court ruled that the requirement of holding an Import Export Code (IEC) number at the time of rendering services in order to avail the benefits under the Services Export from India Scheme (SEIS), as imposed by the Foreign Trade Policy 2015-2020 (FTP), is against the intent and purpose of the Foreign Trade (Development and Regulation) Act, 1992 (FTDR Act).

Court held that the eligibility criteria, as provided in Clause 3.08 (f) of the FTP, for availing the benefits under SEIS has imposed an additional restriction of having an IEC number at the time of rendering the services, which is not the intent or purport of the FTDR Act.

Justices S.V. Gangapurwala and Vinay Joshi held that the said condition cannot be termed as mandatory in nature for availing the benefits under the SEIS since it is against the principal legislation, i.e., the FTDR Act.

[Dowry Death] Dying Declaration Produced By Accused In-Laws Cannot Be Considered Without Authentication: Bombay High Court

Case Title – Vasant v. State of Maharashtra and Ors.

Citation – 2022 LiveLaw (Bom) 282

The Aurangabad bench of Bombay High Court held that before accepting a dying declaration brought on record, the Courts must scrutinize it closely as there is no opportunity to test its veracity by cross examination.

Justice Bharat Deshpande held that a dying declaration which has been recorded by the competent Magistrate, in proper manner, i.e., in the form of questions and answers and as far as possible practical in words of maker of declaration stands on much higher even than the dying declaration which depends upon oral testimony which may suffer from all infirmities of human memory and human character.

INS Vikrant Cheating Case: Bombay High Court Grants Anticipatory Bail To BJP Leader Kirit Somaiya, Son Niel After Prosecution Says 'No Proof'

Case Title – Kirit Somaiya v. State of Maharashtra and Niel Kirit Somaiya v. State of Maharashtra

Citation – 2022 LiveLaw (Bom) 283

The Bombay High Court granted anticipatory bail to BJP leader Kirit Somaiya and his son, Neil, in a case alleging swindling of funds that were collected to save warship INS Vikrant.

Justice Bharati Dangre made absolute an earlier interim order granting them relief after the Mumbai Police represented by Senior Counsel Shirish Gupte submitted that no proof was found to substantiate allegations alleging swindling of nearly Rs. 57 crores.

Two Years After Nigerian's Arrest In NDPS Case Chemical Analyzer Admits "Mistake" In FSL Report, Says No Illicit Drugs Recovered

Case Title: Novafor Samuel Inoamaobi v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 284

Even though state officials are considered supreme and in charge of law and order they are expected to act responsibly, the Bombay High Court said while granting bail to a Nigerian national, who spent almost two years in prison because of a chemical analyser's mistake.

The chemical analyser wrote to the Anti-Terrorism Squad earlier this year and clarified that no contraband was found in the items seized from the Nigerian in the year 2020, only pain killers and caffeine. He was from the forensic sciences laboratory in Kalina.

Assessee Eligible For SVLDRS Declaration Since The Demand Of Duty Quantified On Or Before June 30, 2019: Bombay High Court

Case Title: B. Chopda Construction Private Limited v. Union of India and Ors.

Citation: 2022 LiveLaw (Bom) 285

The Bombay High Court has allowed the declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 on the grounds that although there was an audit, the amount of duty quantified has also been quantified before 30th June 2019.

The division bench of Justice K.R. Shriram and Justice Milind N. Jadhav has observed that the rejection of the petitioner's declaration on the ground that the final audit report was issued after June 30, 2019 was incorrect.

Bombay High Court Grants Bail To Man Accused Of Financing Attempt To Murder Mahesh Bhatt

Case Title – Obedullah Abdul Rashid Radiowala v. The State of Maharashtra

Citation – 2022 LiveLaw (Bom) 286

The Bombay High Court granted bail to Obed Radiowala, a close aide of gangster Ravi Pujari and accused of arranging for finances for the attempt to murder producer Mahesh Bhatt in 2014.

Justice Bharati Dangre stated, "Prima facie in absence of concrete material leading to the guilt of the Applicant, merely on the allegation that sum of Rs.6 Lakh to Rs.7 Lakh was transferred to his brother's account, when there is already acquittal under the provisions of MCOC Act, further incarceration of the Applicant is unnecessary. He shall, however, face the trial."

Justice Dangre clarified that the trial court shouldn't be influenced by her observations and Radiowala should be tried for the alleged offence. She directed his release on furnishing a PR bond to the extent of Rs.50,000 with one or two sureties of the like amount.

Bombay High Court Directs Grant Of Rs 2 Lakh Compensation To Nigerian National Jailed For 2 Years Due To Mistake In FSL Report

Case Title: Novafor Samuel Inoamaobi v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 287

Observing that liberty under Article 21 is also available to foreign citizens, the Bombay High Court today ordered compensation and granted bail to Nigerian national incarcerated in 2020 on the basis of an erroneous forensic report. Justice Bharti Dangre said that the applicant cannot be kept in detention merely because he is a foreign citizen and has criminal antecedents if there was no recovery of drugs under the NDPS Act.

The court suo motu directed the Maharashtra Government to pay the accused Rs. 2 lakh compensation within six weeks for wrongful incarceration after the state submitted that it doesn't have a policy for compensation.

Malwani Building Collapse: Bombay High Court Grants Bail To Owner Who Lost 9 Family Members

Case Title – Mohammad Rafique Mohammad Saleem Siddiqui v. The State of Maharashtra

Citation – 2022 LiveLaw (Bom) 288

The Bombay High Court granted bail to the owner of a building in Mumbai's Malwani area which collapsed last year, killing 9 of his own family members.

Justice Bharati Dangre held, "The applicant, in any case, cannot be attributed a rash and negligent act, resulting into the collapse of the building where he himself has lost his family members. He may face the consequences of the trial when the prosecution will establish and connect him to the grave and negligent act. However, at present, in the wake of the nature of the offence and the evidence collected by the prosecution and compiled in the charge-sheet, the applicant cannot be continued in detention and deserve his release on bail."

High Time Govt Uses E-filing System: Bombay High Court Declines To Take Hard Copies In 'Environmental PIL'

Case Title – Vanashakti & Anr v. Revenue & Forest Dept, State of Maharashtra & Ors

Citation: 2022 LiveLaw (Bom) 289

The Bombay High Court, observing that it was high time the State Government and its agencies started using the E-filing system invariably, refused to take hard copies of an affidavit in a case related to the environment.

Justices Gautam Patel and Gauri Godse, observed, "It is incongruous that in an environmental PIL that seeks to protect wetlands, and filed by a social action group that seeks to protect forests, more and more paper is being used like this."

The bench directed that a copy of the order be sent to the Registrar (Original Side), Registrar General and the Prothonotary & Senior Master to consider issuing appropriate directions or obtaining appropriate directions from the Chief Justice of the Bombay High Court on the point of e-filing of documents.

[Order 7 Rule 11 CPC] Civil Court's Jurisdiction Not Ousted Where Procedure Prescribed In Particular Statute Not Followed: Bombay High Court

Case Title: Chirag R. Mehta v. The State Of Karnataka

Citation: 2022 LiveLaw (Bom) 290

The Bombay High Court held that the court's power to reject a plaint under Order 7 Rule 11 of Civil Procedure Code (CPC) is a drastic power and must be exercised carefully.

Justice Anuja Prabhudessai stated in her order, "The rejection of the plaint under Order VII Rule 11 is a drastic power conferred on the court to terminate the civil action at the threshold. Therefore, the conditions precedent to the exercise of power are stringent".

Bombay High Court Holds Special Hearing On Independence Day, Allows Badminton Player's Wild Card Entry In International Tournament

Case Title: Prathamesh v. Union of India and Anr.

Citation: 2022 LiveLaw (Bom) 291

The Aurangabad bench of Bombay High Court allowed badminton player Prathamesh Kulkarni a wild card entry in an international tournament to be held from August 30 at Pune.

A division bench of Justices Ravindra Ghuge and Arun Pednekar held a special hearing on Independence Day due to paucity of time as the deadline for petitioner's name to be added to the final list of participants was 5 PM on August 15. The court had issued notice to respondents on August 12 and scheduled a special hearing on August 15.

Disclosure Statement Of Co-Accused U/S 27 Evidence Act Not Legal Evidence Qua A Non-Maker Accused: Bombay High Court

Case title: Raju Jokhanprasad Gupta v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 292

The Bombay High Court held that a disclosure statement made by a co-accused under Section 27 of the Evidence Act is not legal evidence qua a non-maker accused.

Justice N. J. Jamadar observed thus while granting bail to one Raju Jokhanprasad Gupta in a case registered against him under Section 307 of IPC [Attempt to murder].

Customs Authorities Cannot Encash Bank Guarantee Before Expiry Of The Limitation Period For Filing An Appeal: Bombay High Court

Case Title: S. J. Enterprises & Anr. v. Union of India

Citation: 2022 LiveLaw (Bom) 293

The Bombay High Court reiterated that Customs Authorities cannot encash the Bank Guarantee furnished by the assessee before the expiry of the statutory period available for filing an appeal.

Observing that the CBEC circular no. 984/08/2014-CX dated 16.09.2014 is binding on the Customs Authorities, the Division Bench consisting of Chief Justice Dipankar Datta and Justice M. S. Sonak directed the Commissioner of Customs to ensure that there is no breach of the CBEC instructions or disobedience of judicial orders in the future.

Contract Discharged By Settlement – Dispute Under Contract Is A Deadwood; Cannot Be Referred To Arbitration: Bombay High Court

Case Title: Vishwajit Sud & Co. v. L & T Stec JV, Mumbai

Citation: 2022 LiveLaw (Bom) 294

The Bombay High Court ruled that once a settlement is arrived at by the parties, the contract between the parties stands discharged by mutual agreement and hence, the dispute arising under the said contract is a deadwood which cannot be referred to arbitration.

Observing that a party who conceals or suppresses facts, including the factum of a settlement, is disentitled to relief under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), the Single Bench of Justice G.S. Kulkarni held that a party cannot be allowed to resurrect the dead issues and foist an unwarranted arbitration after the contract between them stood discharged by a complete accord and satisfaction in terms of the settlement agreement arrived between them.

Bombay High Court Reprimands Lawyer For Trying To Get Court Staff To Change Order

Case Title: Siddhi Real Estate Developers v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 295

Bombay High Court expressed strong displeasure over an Advocate's conduct trying to get alterations in a judicial order through court staff. Court said that it is "conduct unbecoming" after the Private Secretary (PS) who had taken dictation in court informed that petitioner's advocate had requested to make certain alterations in the order. The court didn't take any strict action against the lawyer but put him on notice that he will face the "full brunt of law" if there is a single instance in the future.

Not Necessary To Refuse Bail In Every Case Of Economic Offence: Bombay High Court On Granting Relief To Vipul Chitalia In PNB Scam Case

Case Title: Vipul Chitalia v. CBI and Anr.

Citation: 2022 LiveLaw (Bom) 296

The Bombay High Court ruled that bail cannot be refused to an accused merely because the offence is in nature of economic offence.

Justice Bharati Dangre on August 11 granted bail to Vipul Chitalia, former vice president (banking operations) of Gitanjali Group of Companies and observed, "Incarceration of the accused cannot be treated as synonymous with a punishment and assuming that the accused is prima facie guilty for a grave offence, bail cannot be refused in an indirect process of punishing the accused, before he is convicted of the charge framed against him."

Part-Occupancy Certificate Cannot Be Granted To New Buildings Without Water Connection, Lift: Bombay High Court To BMC

Case Title: Subodh M Joshi v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2022 LiveLaw (Bom) 297

Observing that water and power supply are the most basic amenities for habitation, the Bombay High Court cancelled part-Occupation Certificate (OC) granted for a fresh construction in Mumbai for the builder's failure to provide these facilities.

The court said there was an urgent need for policies that protect residents who are forced to move into newly constructed homes without a lift and water connection, and directed the civic body not to issue even part-OC to a building in such case.

Arbitral Tribunal Not Barred Under Section 79 Of The RERA Act From Passing An Order Of Injunction: Bombay High Court

Case Title: Ashok Palav Coop. Housing Society Ltd. v. Pankaj Bhagubhai Desai & Anr.

Citation: 2022 LiveLaw (Bom) 298

The Bombay High Court ruled that the Arbitral Tribunal is not a Civil Court within the meaning and purview of the Code of Civil Procedure, 1908 and thus, the arbitral proceedings cannot be said to be barred under Section 79 of the Real Estate (Regulation and Development) Act, 2016 (RERA Act).

The Single Bench of Justice G.S. Kulkarni held that the bar of Section 79 of the RERA Act would not apply to an Arbitral Tribunal and thus, the Arbitral Tribunal is not barred from passing an order of injunction under Section 17 of the Arbitration and Conciliation Act, 1996 (A&C Act). The Court added that it can never be the intention of the legislature to elevate the status of the Arbitral Tribunal to that of a Civil Court or to construe the Arbitral Tribunal as an authority like a Civil Court.

Sheena Bora Murder: Approver Driver Shyamvar Rai Gets Bail From Bombay HC 7 Yrs. After Arrest

Case Title: Shyamwar Pinturam Rai v. CBI, Special Crime-1 & Anr.

Citation: 2022 LiveLaw (Bom) 299

Bombay High Court granted bail to Shyamvar Rai, CBI's star witness in the Sheena Bora murder case nearly seven years after his arrest. Justice Bharati Dangre granted bail to Rai on the same bail conditions as co-accused Sanjeev Khanna, who was granted bail in June, this year.

Rai, who was the driver of prime accused and socialite Indrani Mukerjea was first to be arrested in the case. Subsequently he was declared an approver by the Special CBI court in 2016 and deposed as a prosecution witness. He had written to the court in 2015 saying he wanted to "tell the truth about the Sheena Bora murder case."

Insurance Ombudsman Performs Quasi-Judicial Functions While Deciding Complaints; Award Can Be Challenged Under Article 227: Bombay High Court

Case Title: Aditya Birla Sun Life Insurance Co. Ltd. v. Insurance Ombudsman & Anr.

Citation: 2022 LiveLaw (Bom) 300

Observing that the Insurance Ombudsman is like a tribunal while deciding a complaint, the Bombay High Court held that an insurance company can challenge Insurance Ombudsman's award before the High Court under Article 227 of the Constitution.

Justice G. S. Kulkarni disagreed with the view taken by the Calcutta High Court that a writ petition under Article 227 of the Constitution against an award passed by the Ombudsman would not be maintainable. The court observed, "It thus may not be an acceptable proposition that merely because Sub-Rule (8) of Rule 17 provides that an award shall be binding on the insurer, the insurer would be precluded from assailing the award by invoking the jurisdiction of this Court under Article 227 being a remedy as guaranteed by the Constitution, more particularly, being an adjudication governed by statutory rules as noted above."

Rape Convict's Advanced Age & Regular Attendance In Court No Reason For Lesser Sentence Than Minimum Punishment Under Law: Bombay High Court

Case Title: Madhukar Makaji Mudgul v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 301

The Bombay High Court held that a rape convict's advanced age and regular attendance in court hearings cannot be a reason for a lesser sentence than the minimum punishment under law. The court enhanced the prison sentence of a man who raped his deaf and mute sister-in-law in 2005.

A division bench of Justices AS Gadkari and Milind Jadhav stated, "Once the trial court had come to the conclusion that the prosecution had squarely proved the offence of rape committed by the accused on the victim beyond reasonable doubt, then there is no reason to defer from the statutory provision and award a lesser sentence than what is prescribed by the statute."

Law Considers Women As 'Weaker Section' Of Society Requiring More Protection: Bombay High Court While Transferring Matrimonial Case

Case Title: Rahul Uttam Phadtare v. Sarika Rahul Phadtare

Citation: 2022 LiveLaw (Bom) 302

The Bombay High Court observed that law considers woman as belonging to weaker section of society and her inconvenience needs to be prioritized.

Justice S. M. Modak in his order in a matrimonial case observed, "Even though this reason may be of some importance, the fact that the Applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be given more priority because the law considers woman as class belonging to weaker section of society and needs more protection."

Mere Erroneous Application Of Law; Award Need Not Be Set Aside: Bombay High Court

Case Title: NHAI v. Additional Commissioner, Nagpur & Ors.

Citation: 2022 LiveLaw (Bom) 303

The Bombay High Court reiterated that when the court is convinced that the Arbitrator has erred only on specific issues and that the arbitral award is otherwise sustainable, the court is not mandatorily required to set aside the entire award under Section 34 of the Arbitration and Conciliation Act, 1996.

The Single Bench of Justice Manish Pitale ruled that though the arbitral award granting interest to land owners on enhanced compensation from the date of the notification for acquisition, and not from the date of taking possession, is contrary to the mandate of Section 3H (5) of the National Highways Act, 1956 (NHA); however, it constituted a mere erroneous application of the law and hence, the award cannot be said aside on the said ground.

Case title: MEP Infrastructure Developers Ltd. & Ors. v. MSRDC Sea Link Ltd. & Ors.

Citation: 2022 LiveLaw (Bom) 304

The Bombay High Court observed that it has become a trend for 'ineligible' bidders of contracts to try and arouse the court's conscience claiming their bids were more financially viable for the State. However, such financial bids shouldn't even be considered and must be rejected outright if the company doesn't meet the technical criteria for the contract.

Chief Justice Dipankar Datta and Justice M. S. Karnik held, "...we may unhesitatingly refer to a common trend of ineligible bidders offering a lower/higher bid than the eligible bidders and then raising a plea of how the "State" would have benefited financially if its bid were accepted to arouse judicial conscience to prevent unnecessary drainage from the public exchequer. Unmeritorious pleas such as these ought not to detain us for a moment and deserve outright rejection, which we hereby do,".

Bombay High Court Directs Demolition Over 100-Year-Old Dilapidated Widows Hostel Building In Mumbai

Case Title: Farzin Ardeshir Adel & Ors. v. MCGM & Ors. and Jatin Bhankharia v. MCGM & Ors.

Citation: 2022 LiveLaw (Bom) 305

Bombay High Court upheld a demolition order of an over 100-year-old dilapidated C-1 category building in Mumbai that was home to widows from the Parsi community.

A division bench of Justices R. D. Dhanuka and Kamal Khata ruled that the seven tests to check the building's strength under BMC's 2018 guidelines were not mandatory for load bearing structures like the present one and the guidelines would apply only to cement concrete (RCC) structures.

"..the TAC (Technical Advisory Committee) thus rightly formed an opinion that the non-destructive test and other tests were not required to be carried out in view of the structure being a load bearing structure. We do not find any infirmity in this view taken by the TAC", the court held.

[S.14 SARFAESI Act] Jurisdiction Of DM Purely Ministerial In Nature; Not Empowered To Hear Borrower/ Third Parties: Bombay High Court

Case Title: Phoenix Arc Pvt. Ltd. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 306

Observing that the jurisdiction of the District Magistrate (DM) is limited only to assisting secured creditors in taking possession of secured assets under the SARFAESI Act, the Bombay High Court held that the DM isn't empowered to hear the borrower or third parties while deciding application filed by secured creditor.

"Section 14 of the SARFAESI Act does not contemplate much less empower the DA to even consider much less adjudicate upon any objections raised by Borrower or anybody else", a division bench of Justice K. R. Shriram and Justice A. S. Doctor held.

Touching Child's Private Parts With Sexual Intent Sufficient To Attract POCSO Act, Absence Of Injury Not Relevant: Bombay High Court

Case Title: Ramchandra Shrimant Bhandare v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 307

Bombay High Court held that touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory.

Justice Sarang Kotwal held, "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act."

Interim Relief Under Section 9 Of A&C Act- Incidental To Recovery Of Possession Of Property; Small Causes Court Alone Would Have Jurisdiction: Bombay High Court

Case Title: BXIN Office Parks India Pvt. Ltd. v. Kailasa Urja Pvt. Ltd.

Citation: 2022 LiveLaw (Bom) 308

The Bombay High Court ruled that reliefs which are incidental to the possession of the licensed premises cannot be sought in an application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act), in view of the exclusive jurisdiction conferred on the Court of Small Causes under Section 41 of the Presidency Small Cause Courts Act, 1882 (PSCC Act).

Justice G.S. Kulkarni reiterated that the bar contained in Section 41 of the PSCC Act applies not only to a suit for recovery of possession of immovable property but also to all other incidental reliefs which can be claimed by a party in a suit for recovery of possession and hence, the jurisdiction to grant such incidental reliefs would also lie with the Small Causes Court.

Customers Cannot Suffer Due To Your Technical Glitches Of Revenue Department, States Division Bench Of Bombay High Court To Chief Controlling Revenue

Case Title: Anand I Power Ltd. v. The Chief Controlling Revenue Authority & Ors.

Citation: 2022 LiveLaw (Bom) 309

The Bombay High Court directed the Chief Controlling Revenue Authority (CCRA) to adjust the amount of Stamp Duty paid by the Petitioner in the General stamp head amounting to Rs.40,00,000/- in the proper head, as the payment of the same was not being acknowledged by the CCRA.

Justice S. V. Gangapurwala and Justice Madhav J. Jamdar called the case a "classic illustration of the litigants facing problems due to technical glitches" and noted that the petitioner did not show any intention to flout the orders of the CCRA. "If according to the Respondents the amount was not deposited in the proper account, it could have refunded the amount to the Petitioner so as to redeposit the same in the proper account or the said Authority itself would have transferred the same to the proper account, as the communication was in the same financial year", the court observed.

Company In Liquidation Cannot Always Avoid Proceedings U/S 138 NI Act, Its Conduct Can Be Weighed In: Bombay High Court

Case Title: Nizar Noorali Rangara and Anr. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 310

Bombay High Court held that to determine whether a complaint under section 138 can be entertained when the company is in the process of winding up, the fact and circumstance of each case have to be considered. The question cannot be considered without the facts especially to "insulate a company and its ex-directors from the rigors of law where it appears that they profess to take advantage of their own wrong".

Justice N. J. Jamadar further observed that a winding up order due to settlement terms is not on the same pedestal as winding up order passed on merits

Implicitly Admitted Liability Does Not Prevent Reference Of Dispute To Arbitration If Arbitration Agreement Exists: Bombay High Court (livelaw.in)

Case Title: USP Studios Pvt. Ltd. v. Ganpati Enterprises & Ors.

Citation: 2022 LiveLaw (Bom) 311

The Bombay High Court held that impliedly admitted liability cannot prevent reference of dispute to arbitration. Justice N. J. Jamadar further held that judicial authority must make a reference to arbitration if even a semblance of dispute exists between two parties who have an arbitration agreement.

Notice Under Section 21 Of A&C Act Issued; Court Not Barred From Exercising Jurisdiction Under Section 9: Bombay High Court

Case title: Relcon Infroprojects Ltd. & Anr. v. Ridhi Sidhi Sadan, Unit of Shree Ridhi Co. Op. Housing Society Ltd. & Ors.

Citation: 2022 LiveLaw (Bom) 312

The Bombay High Court ruled that merely because a notice under Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act) to refer the disputes to arbitration is issued by a party, the Court is not barred from exercising jurisdiction under Section 9 of the A&C Act for interim measures. The Court added that it is not constrained to refer the parties to arbitration and convert the proceedings under Section 9 into an application under Section 17 of the A&C Act, to be adjudicated by the arbitral tribunal.

Justice G.S. Kulkarni reiterated that when an application under Section 9 has already been taken up for consideration, the question of examining whether the remedy under Section 17 is efficacious or not would not arise.

Other developments

[8 Yrs. Delay In POCSO Trial] Bombay High Court Seeks Principal Judge's Explanation On Unequal Distribution Of Cases To Designated Courts

Case Title - Mr. Azaruddin Nihaluddin Mirsilkar v. State of Maharashtra & Anr.

Bombay High Court sought an explanation from the Principal Judge (PJ), City Civil and Sessions Court, Mumbai regarding the unequal distribution of cases under the Protection of Children from Sexual Offences Acts to the designated courts.

Justice Bharati Dangre noted a "startling feature," that among the four functional POCSO courts at Dindoshi, court number 11 had been allotted 1,228 cases and 1,070 cases were allotted to court number 12. However, the remaining two courts were assigned merely 138 and 116 cases, each.

Paltry Remuneration, Insufficient Support Staff For Committee Set Up For Publishing Ambedkar's Works: Bombay High Court Expresses Displeasure

Case Title – High Court on Its Own Motion v. State of Maharashtra

The Bombay High Court remarked that the honorarium and allowances granted to non-official members of the committee overseeing publication of the works of Dr. B. R. Ambedkar was insufficient.

"Honorarium must be honorarium. We accept they may not ask for more but is it not the duty of the govt that it pays amount commensurate of their status, knowledge and services being rendered?" Justice PB Varale remarked.

Post Against Sharad Pawar: Bombay High Court Clubs 22 FIRs Against Actor Ketaki Chitale, 6 Against Student Nikhil Bhamre

The Bombay High Court on Monday clubbed all 22 FIRs against Marathi actor Ketaki Chitale and the six FIRs against student Nikhil Bhamre imprisoned by the Maharashtra Police for sharing posts aimed against NCP supremo Sharad Pawar.

The FIRs against Chitale and Bhamre have been transferred to Kalwa and Navpada respectively. All additional FIRs barring the first will be treated as statements recorded under section 164 of the CrPC in view of the judgement in Amish Devgan's case.

A division bench of Justices Nitin Jamdar and Justice NR Borkar passed the order in their respective petitions seeking quashing of FIR.

There Is No Opposition, Court Left To Analyze Policy: Bombay HC Dissatisfied With BMC's Stand On Regularization Of Narayan Rane's Juhu Residence

The Bombay High Court on Tuesday expressed displeasure at the BMC's affidavit agreeing to consider regularising 300% additional construction of Union Minister Narayan Rane's Juhu residence.

Referring to BMC's previous decision refusing to regularise the illegal portions and his own order upholding the decision, Justice RD Dhanuka heading the division bench said:

"Does the order passed by this court have no sanctity? This will be endless otherwise. Is the corporation sitting above the High Court? This is your stand; we will have to examine it."

Lack Of Basic Amenities Like Water, Electricity Violates Fundamental Rights Of Tribal Villagers In Gadchiroli: Bombay HC Takes Suo Motu Cognizance

The Bombay High Court has taken suo motu cognizance of the "non-existence" of even basic amenities like water and electricity for tribals of certain villages in Maharashtra's Gadchiroli district.

A division of Justice Sunil Shukre and Justice GA Sanap appointed an amicus curiae and issued notice to the State through the Chief Secretary and various other departments like revenue and tribal welfare and observed, "Denial of the aforestated facilities to the villagers for almost half of the year leads to serious violation of fundamental rights of the villagers who are all tribal. We, therefore, take cognizance of this petition and direct that an experienced advocate be appointed to assist the Court."

Bombay High Court Directs WFI To Decide Plea Against Dissolution Of Sharad Pawar-Led Committee Of State Wrestling Association

Case Title: Maharashtra Wrestling Association v. Union of India & Anr.

The Bombay High Court on Wednesday directed the Maharashtra State Wrestling Association (MSWA) to appeal against the "sudden dissolution" of its elected executive committee led by NCP chief Sharad Pawar, before the Wrestling Federation of India within 10 days.

A division bench of Justices SV Gangapurwala and Madhav Jamdar further directed the president of WFI to decide the appeal expeditiously within 30 days from filing.

'Matter Of Serious Concern': Bombay HC Seeks Details On Building Permits Granted In Excess Of Height Limit Near Upcoming Navi Mumbai Airport

Case Title: Yeshwanth Shenoy v. The Union of India

The Bombay High Court on Thursday sought details on permissions granted for high-rises allegedly in excess of height limit near upcoming Navi Mumbai airport

A division bench of Chief Justice Dipankar Datta and Justice M. S. Karnik asked the AAI to inform the court about the number of clearances granted for construction of high-rise buildings above 55 meters within 20 kilometres of the Navi Mumbai airport. The Court directed City and Industrial Development Corporation of Maharashtra to be added as a respondent to a PIL on obstructions around the airports, following submissions that the planning authority had invited bids way beyond the permissible limit.

Explain How AAI's Decision To Increase Height Limit Of Buildings Near Navi Mumbai Airport Is Illegal: Bombay High Court To Petitioner

Case Title: Yeshwanth Shenoy v. The Union of India

The Bombay High Court on Monday asked the petitioner to explain how the Airport Authority of India's (AAI) decision to increase maximum permissible height of buildings near upcoming Navi Mumbai Airport from 55.10 metres to 160 metres is violative of the law.

Chief Justice Dipankar Datta and Justice M.S. Karnik were hearing a PIL filed by advocate Yeshwanth Shenoy alleging violation of international safety norms by AAI, CIDCO and DGCA regarding constructions near airports.

Registrar Didn't Act Independently: Bombay HC Sets Aside Govt Order Removing NCP Members From Jalgaon Milk Union's Managing Committee

Case Title: Jagdish Lahu Badhe & Ors. v. State of Maharashtra & Ors

The Aurangabad bench of Bombay High Court set aside an order removing 14 members of elected managing committee of the Jalgaon Zilla Dudh Utpadak Sangh Ltd.

"DDR has passed the impugned order not only in the absence of any ground or by resorting to any enquiry by following the principles of natural justice but even has passed it mala fide with an ulterior motive to oblige the Government", the court observed.

Justices Mangesh Patil and Sandeep Marne were dealing with a writ petition challenging an order passed by Divisional Deputy Registrar of the Co-operative Societies (DDR) under section 77A of the Maharashtra Co-operative Societies Act, 1960 (Act). The court noted that the Act gives certain powers to the Registrar on being satisfied of existence of the circumstances indicated under section 77A. However, DDR had communicated to the Chief Minister on 28 July 2022 that there were no circumstances to take any decision under section 77A and the order could be challenged. Despite this, the DDR on the behest of the Chief Minister passed the order removing 14 members of the managing committee.

Bombay High Court Directs CBIC To Issue Clarification Regarding Distribution/ Reporting Of ISD Credit

Case Title: Unichem Laboratories Limited versus Union of India and Ors.

The Bombay High Court directed the Central Board of Indirect Taxes and Customs (CBIC) to issue a clarification in relation to the distribution/ reporting of the ISD credit.

The Bench of Justices K.R. Shriram and Gauri Godse was dealing with a batch of writ petitions, highlighting the difficulties faced by the petitioners in the distribution/ reporting of the ISD credit.