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Bombay High Court Monthly Digest: February 2023
Amisha Shrivastava
5 March 2023 4:00 PM IST
Nominal Index [Citation 65 - 126]Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors. 2023 LiveLaw (Bom) 65Milind Shantilal Rathod and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 66Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 67M/s. Instakart Services Private Limited v. State of Maharashtra and Ors....
Nominal Index [Citation 65 - 126]
Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors. 2023 LiveLaw (Bom) 65
Milind Shantilal Rathod and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 66
Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 67
M/s. Instakart Services Private Limited v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 68
M/s. Nanak Construction v. State of Maharashtra 2023 LiveLaw (Bom) 69
Vijay Jagannath Salvi v. Kalyan Dombivali Municipal Corporation and Anr. 2023 LiveLaw (Bom) 70
Kirvan Vendsol Pvt. Ltd. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 71
Rekha @ Vidhila Faldessai v. State 2023 LiveLaw (Bom) 73
Vaibhav Padmakar Kulkarni v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 74
Gaurav s/o Santoshkumar Dhaye v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 75
Rashmi Developments Pvt. Ltd. v. Municipal Corporation of Greater Mumbai and Ors. 2023 LiveLaw (Bom) 76
Anjuman Moinut Tulba & Ors v. Education Officer Primary & Ors 2023 LiveLaw (Bom) 77
Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 78
Bombay Lawyers Association v. Jagdeep Dhankar & others 2023 LiveLaw (Bom) 79
National Highways Authority of India v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 80
Vaishali Chaburao Katore v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 81
Chandaba w/o. Gangaram Pauyed v. State of Maharashtra 2023 LiveLaw (Bom) 82
Percept Finserve Pvt Ltd & Anr. v. Edelweiss Financial Services Ltd 2023 LiveLaw (Bom) 83
RMS v. MOP 2023 LiveLaw (Bom) 84
Yasin Gulab Shikalkar v. Maruti Nagnath Aware and Ors. 2023 LiveLaw (Bom) 85
Ashokrao s/o Uttamrao Pawar v. State of Maharashtra 2023 LiveLaw (Bom) 86
Sudam s/o. Ganpat Kothambire and Ors. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 87
Hasmukh Solanki v. State of Maharashtra 2023 LiveLaw (Bom) 88
M/s. Ashok Commercial Enterprises and Anr. v. Rajesh Jugraj Madhani 2023 LiveLaw (Bom) 89
Harikesh @ Guddu Madan Kattilwar v. Deputy Police Commissioner 2023 LiveLaw (Bom) 90
Shashikala Kishan Yewale v. State of Maharashtra & Anr 2023 LiveLaw (Bom) 91
MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation 2023 LiveLaw (Bom) 92
Shailendra Kumar Dubey v. XYZ 2023 LiveLaw (Bom) 93
Pushkaraj Shekharrao Indurkar v. State of Maharashtra 2023 LiveLaw (Bom) 94
Ekta Welfare Society v. State of Maharashtra & Ors 2023 LiveLaw (Bom) 95
Anand s/o Shivaji Ghodale v. State of Maharashtra 2023 LiveLaw (Bom) 96
Quess Corp v. Netcore Cloud Pvt Ltd 2023 LiveLaw (Bom) 97
Late Bharat Jayantilal Patel v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 98
Konark Life Spaces v. Assistant Commissioner of Income -Tax 2023 LiveLaw (Bom) 99
Abbott India Ltd v. Assistant Commissioner of Income Tax & Ors. 2023 LiveLaw (Bom) 100
Ashwini Sanjay Babar v. State of Maharashtra 2023 LiveLaw (Bom) 101
Sajjan s/o Hirchand Gusinge v. State of Maharashtra 2023 LiveLaw (Bom) 102
CLSA India Private Limited v. Deputy Commissioner of Income Tax & Ors. 2023 LiveLaw (Bom) 103
Mohammed Mussaviruddin Mohammed Naziruddin v. State of Maharashtra 2023 LiveLaw (Bom) 104
BST Textile Mills Pvt Ltd v. The Cotton Corporation of India Ltd 2023 LiveLaw (Bom) 105
Dr. Sunil s/o Nilkanth Washimkar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 106
Arvind S/o Sarjerao Devkar v. State of Maharashtra 2023 LiveLaw (Bom) 107
Rohit Enterprises v. Commissioner State GST Bhavan 2023 LiveLaw (Bom) 108
Deluxe Caterers Pvt. Ltd. v. M/s. Narayani Associates 2023 LiveLaw (Bom) 109
Mahipati Antu Jadhav v. State of Maharashtra 2023 LiveLaw (Bom) 110
Sunil Rama Kuchkoravi v. State of Maharashtra 2023 LiveLaw (Bom) 111
Ms. M. V. Nordlake GmbH v. Union of India 2023 LiveLaw (Bom) 112
Pr. Commissioner of Income-Tax Versus Godrej & Boyce Mfg. Co. Ltd. 2023 LiveLaw (Bom) 113
ACC Ltd. v. Dr. Rustum Samboyce And Ors. 2023 LiveLaw (Bom) 114
Naresh Goyal v. Directoratate Of Enforcement And Anr 2023 LiveLaw (Bom) 115
M/s. Perfect Auto v. Santosh Narsingdasji Agrawal 2023 LiveLaw (Bom) 116
Natraj Sanskrutik Kala Kendra through its proprietor Vishal Nandkishor Gangawane v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 117
Rochem India Pvt. Ltd. Versus CBIC 2023 LiveLaw (Bom) 118
Kalpesh Shantikumar Mehta & Ors. vs. NKGSB Co-op. Bank Ltd & Anr. 2023 LiveLaw (Bom) 119
Sandeep Kudale v. State of Maharashtra 2023 LiveLaw (Bom) 120
Trustees Association of India v. Competition Commission of India & Ors 2023 LiveLaw (Bom) 121
Deepak Marda v. Income Tax Officer 2023 LiveLaw (Bom) 122
Mayur Vaijanath Tawde & Anr. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 123
Manohar s/o. Dnyaneshwar Pote v. Collector, Jalna and Ors. 2023 LiveLaw (Bom) 124
Jane Cox v. Bar Council of India 2023 LiveLaw (Bom) 125
Shoyab Mehtab Ali v. Divisional Commissioner and Anr. 2023 LiveLaw (Bom) 126
Reports/Judgments
Case Title: Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors.
Citation: 2023 LiveLaw (Bom) 65
The Bombay High Court recently imposed Rs. 10,000/- cost on a petitioner who had objected to opening of a Country Liquor Bar in his neighbourhood, observing that he has no locus standi and his allegations hamper the business owner’s right to carry on trade.
Justice Milind N. Jadhav, while dismissing the writ petition, said the manner in which the Petition has been drafted is an abuse of the process of law. The petition had challenged Nasik Collector's decision to allow a restaurant and bar-owner's application for shifting of CL III license (License for retail sale of Country Liquor) from existing premises to the new premises.
Case Title: Milind Shantilal Rathod and Ors. v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 66
The Bombay High Court refused to direct the State to consider degree holders in Civil Engineering as eligible for the post of Junior Engineer in the Water Resources Department as the recruitment rules only provide for diploma in Civil Engineering or equivalent qualification.
Acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne dismissed a writ petition filed by 610 Civil Engineering degree holders challenging the eligibility criteria.
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 67
There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021.
A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum.
The court noted that the parties had settled the matter and the wife had voluntarily accepted the settlement.
Case Title: M/s. Instakart Services Private Limited v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 68
The Bombay High Court held that Flipkart’s delivery partner Instakart is not an importer, commission agent or a dealer under the Municipal Corporation Act, 1888 and is not amenable to Local Body Tax (LBT).
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani while setting aside Pune Municipal Corporation’s notice asking Instakart to register for assessment of LBT held that Instakart is doing import of goods for the purpose of delivery to some other person and hence acts like a courier, postman, or delivery person.
Case Title: M/s. Nanak Construction v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 69
The Bombay High Court directed the Nagpur Zilla Parishad to consider a construction firm’s bid for various works, observing that it could not be disqualified merely because the State is considering blacklisting it.
A division bench of Justice A. S. Chandurkar and Justice Vrushali V. Joshi noted that the order of blacklisting is not in existence and even according to the Zilla Parishad the proposal of blacklisting the petitioner is pending with the state government. In absence of any order of blacklisting petitioner cannot be prevented from participating in the tender process, the court held.
The court directed the Zilla Parishad to consider the petitioner’s bids according to the tender notice. The bids shall not be rejected only because of the communication dated December 30, 2022, the court said.
Case Title: Vijay Jagannath Salvi v. Kalyan Dombivali Municipal Corporation and Anr.
Citation: 2023 LiveLaw (Bom) 70
The Bombay High Court recently permitted a member of the Uddhav Thackeray-led Shiv Sena to organise a bodybuilding competition, observing that it is a secular activity and does not aggravate differences between two political parties.
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani, while quashing Kalyan-Dombivli Municipal Corporation’s (KDMC) communication withdrawing the permission, held that organising a sports event like body building competition cannot be considered as aggravating existing differences.
The court said the concerned officer of KDMC has not explained the nature of the alleged differences (as contemplated in the Clause 1 of the chapter General Conduct) between the two factions of Shivsena. The court further said that the communication has been issued without giving any opportunity of hearing to the petitioner, who is a member of the Shivsena party.
Case Title: Kirvan Vendsol Pvt. Ltd. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 71
Noting that the safety and hygiene of a girl child was paramount, the Bombay High Court dismissed a start-up's petition seeking relaxation of certain tender conditions regarding sanitary napkin vending and disposal machines to 9,940 schools across the State.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep Manre was dealing with a petition by Kirvan Vendsol Pvt Ltd alleging that the requirement of a minimum turnover of Rs. 12 crore and minimum three-year experience made them ineligible to participate in the tender process.
“As the project is for safety and hygiene practice for schoolgirls... naturally the predominant factor to be kept in mind by the State is quality," the Bench said.
Citation: 2023 LiveLaw (Bom) 72
The Bombay High Court allowed a man’s application seeking transfer of domestic violence proceedings from the magistrate’s court to the family court, where he has filed a divorce petition. The court said it would not be inconvenient for the wife as both are in the same city.
Justice Amit Borkar held that there is a possibility of conflicting verdicts and transfer will reduce the burden of one court.
Case Title: Rekha @ Vidhila Faldessai v. State
Citation: 2023 LiveLaw (Bom) 73
In a corporal punishment case, the Bombay High Court held that use of some physical force by school teacher, with no mala fide intention, only to correct the child does not constitute an offence under Section 324 of the IPC or Section 2(m) of the Goa Children's Act, 2005.
Justice Bharat P. Deshpande of the Goa bench, while quashing a schoolteacher’s conviction for hitting two children's hands with a stick, observed that teachers are the backbone of our education system, and it would be difficult to maintain discipline in school if they are constantly under fear of trivial allegations.
Bombay High Court Refuses To Direct State To Provide Aid To Snakebite Victims
Case Title: Vaibhav Padmakar Kulkarni v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 74
The Bombay High Court refused to direct the state government to provide financial aid to all snake and scorpion bite victims in the state observing that it is a policy decision, and such direction would encroach on the State Government’s jurisdiction.
A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne, disposed of a PIL seeking directions to the State to grant financial aid to all victims of snake and scorpion bites residing in Maharashtra without discrimination. The court observed that granting financial aid is a matter of policy decision to be taken by the State government under Article 162 of the Constitution.
Case Title: Gaurav s/o Santoshkumar Dhaye v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 75
The Bombay High Court directed University of Mumbai to grant admission to a law graduate in the LLM course, observing that there is no such requirement that Non-Creamy Layer (NCL) certificate application must precede the registration process.
“If we take the averment in the Petition at face value that the rejection was on the ground that the receipt of the fresh application could not be the same date as the closing date of registration process, then the refusal is clearly wrong and cannot be sustained. There is no such requirement that the NCL certificate application must precede the registration process nor is it stated anywhere by how many days it should so precede it. Indeed, there can be no such requirement,” a division bench of Justice G. S. Patel and Justice Neela Gokhale said.
High Court Directs MCGM Commissioner To Decide Fate Of Proposed 'Floating Hotel' In Mumbai
Case Title: Rashmi Developments Pvt. Ltd. v. Municipal Corporation of Greater Mumbai and Ors.
Citation: 2023 LiveLaw (Bom) 76
The Bombay High Court directed the Commissioner of Municipal Corporation of Greater Mumbai (MCGM) to take a final decision regarding grant of permission for construction of a Floating Hotel (Floatel) anchoring off the Raj Bhavan.
The court directed the Commissioner to first decide whether he has exclusive jurisdiction to decide the matter or whether recommendations from the three-member committee formed by the High Court are required.
The Commissioner has to decide the NOC application within four weeks from the date of his decision regarding jurisdiction and within eight weeks from the date of submission of all relevant papers and representation by the petitioner company.
Case Title: Anjuman Moinut Tulba & Ors v. Education Officer Primary & Ors
Citation: 2023 LiveLaw (Bom) 77
The Bombay High Court directed the civic body of Malegaon city in Maharashtra to conduct surprise inspections at 27 government aided schools and ascertain if they had operational kitchens and storage rooms to provide midday meals for its students.
A division bench of Justices GS Patel and Neela Gokhale was hearing the schools’ petitions seeking directions to the municipal corporation to re-start supplying uncooked grains instead of asking schools to take cooked meals from the centralized community kitchen chains.
“We are not allowing you to outsource the cooking. You don't have the fundamental right to poison children because you are a minority institution…We cannot take the risk,” Justice Patel said refusing to even consider the proposition that the schools may by supplied food grains and outsource the cooking.
After hearing all the parties the bench noted in the order, “In the state there is no absolute prohibition on schools preparing its own midday meal. It is equally not necessary for schools to have the infrastructure to prepare their meals and can receive the midday meals.”
Case Title: Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 78
The Bombay High Court green flagged the bullet train project and refused to set aside the acquisition of Godrej & Boyce Manufacturing Co. Ltd's plot at Vikhroli.
"There are no irregularities in the acquisition...Project is of paramount importance...Public interest would prevail over private interest," a division bench of Justices RD Dhanuka and MM Sathaye observed. The court has also refused to stay the project.
Godrej had challenged the award and compensation of Rs 264 crore by the deputy collector on September 15, 2022 for acquiring 39,252 sqm (9.69 acre) of company land for the Mumbai - Ahmedabad bullet train project. The company claimed the amount was a fraction of the initial offering of Rs. 572 crores.
Case Title: Bombay Lawyers Association v. Jagdeep Dhankar & others
Citation: 2023 LiveLaw (Bom) 79
The Bombay High Court on Thursday dismissed a PIL against the Vice President Jagdeep Dhankhar and Law Minister Kiren Rijiju for their constant public criticism of the judiciary’s ‘collegium system’ and remarks against the basic structure doctrine.
Petitioner - the Bombay Lawyers Association sought to restrain them from discharging their duties claiming that the two have disqualified themselves from holding constitutional posts of Vice President and Minister of the Union Cabinet through their conduct, having expressed lack of faith in the Constitution of India.
The petitioner has called the attack on the judiciary as a frontal attack on the constitution and narrated several instances.
“For reasons to be recorded separately PIL is dismissed,” the division bench of ACJ SV Gangapurwala and Justice Sandeep Marne said.
Case Title: National Highways Authority of India v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 80
The Bombay High Court allowed felling of mangrove trees within the construction zone of the Vadodara Mumbai expressway observing that the proposed expressway will benefit large sections of the population. The court noted that NHAI has acquired permission from all authorities subject to stringent conditions. For example, the ministry of environment has required compensatory afforestation and to develop a separate nursery to raise at least 1 lakh seedlings of forest species.
Case Title: Vaishali Chaburao Katore v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 81
The Bombay High Court held that a child who was born after the cut-off date but passed away before nomination, would not be counted to disqualify the parent from contesting panchayat elections under the Maharashtra Village Panchayat Act, 1959.
Justice Arun R. Pedneker of the Aurangabad Bench set aside the authorities’ order disqualifying a woman on the ground that she had more than two children after the cut-off date.
Case Title: Chandaba w/o. Gangaram Pauyed v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 82
The Bombay High Court held that dismissal of a compensation enhancement claim only because the claimant did not lead evidence cannot be termed a decision on merits. Observing thus, the High Court set aside the reference court's dismissal of five claims under the Land Acquisition Act, 1894.
Justice Sharmila U. Deshmukh of the Aurangabad bench observed that the reference Court has to consider factors under Section 23 of the Act to decide the claim.
SPA Which Gives Option To Resell Shares To Vendor, Not A ‘Forward Contract’: Bombay High Court
Case Title: Percept Finserve Pvt Ltd & Anr. v. Edelweiss Financial Services Ltd
Citation: 2023 LiveLaw (Bom) 83
The Bombay High Court ruled that a Share Purchase Agreement (SPA), which gives an option to the purchaser to require the seller/vendor to repurchase the shares on the occurrence of a contingency, does not constitute a ‘forward contract’ and thus, the same is enforceable.
The bench of Justices K. R. Shriram and Rajesh S. Patil, was dealing with an arbitral award, where the Arbitral Tribunal had ruled that the option contained in the SPA was unenforceable since it constituted a contract in derivatives which was not traded on a stock exchange, the same being illegal under Section 18A of the Securities Contracts (Regulation) Act, 1956 (SCRA).
Upholding the order of the Single Judge where it had set aside the arbitral award, the Division Bench held that merely because the contract contains a “put option” in respect of securities, the contract cannot be termed as a trade or contract in derivatives. Thus, the Court held that the option contemplated under the SPA was not prohibited in law.
Citation: 2023 LiveLaw (Bom) 84
A woman doesn’t have the right to obstruct the sale of her estranged husband’s home if he is willing to provide her a rented accommodation with similar facilities, the Bombay High Court has held.
The court made the observation while refusing to interfere with an order of the Family Court permitting the husband to sell the flat for clearing an outstanding loan. The Family Court had also directed the wife to move out of the accommodation and choose a suitable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month.
The court observed that such an order takes care of the rights of both parties and the wife can’t be heard to say that she would obstruct sale merely because she is habituated to the flat.
Case Title: Yasin Gulab Shikalkar v. Maruti Nagnath Aware and Ors.
Citation: 2023 LiveLaw (Bom) 85
Observing that a plaintiff cannot be made to suffer if a Court Commissioner did not follow the procedure while making a report, the Bombay High Court has held that the Appellate Court can appoint another Court Commissioner if the one appointed by the Trial Court failed to present a correct picture of the suit land and same will not attract res judicata
Justice Sandeep V. Marne set aside District Court’s order refusing to appoint another Court Commissioner in a case where trial court had appointed one to measure the suit land. The trial court had discarded the Court Commissioner’s report as he had not issued notice to adjacent landholders before taking measurements of the suit land. Court added that even the trial court could have appointed another Commissioner.
Case Title: Ashokrao s/o Uttamrao Pawar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 86
Observing bail has to be granted or rejected by a speaking order, the Nagpur bench of Bombay High Court directed the subordinate Courts to desist from using rubber stamps to decide bail applications.
A bail order produced before a bench of Justice Vinay Joshi and Justice Valmiki Menezes reflected it had been "rendered on a rubber stamp with blank spaces" in which the Magistrate had filled in the bond amount without mentioning any other details.The court said that there is no apparent authorization for the use of such rubber stamps to enable a Magistrate to grant bail. Grant of bail is a matter of discretion to be exercised by the concerned Magistrate, who is expected to apply his mind after considering the material on record and is required to be granted or rejected by a speaking order.
The court directed the Registrar to circulate its judgement to all District and Sessions courts.
Case Title: Sudam s/o. Ganpat Kothambire and Ors. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 87
The Bombay High Court held that grant of membership of a cooperative society to any person can be challenged only by filing a dispute before the co-operative court under Section 91 of the Maharashtra Co-Operative Societies Act, 1960.
Justice Arun R. Pednekar of the Aurangabad bench observed that such a challenge does not lie under section 79A as State cannot pass any direction in public interest which contravenes Section 23 of the Act.
Case Title: Hasmukh Solanki v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 88
The Bombay High Court rejected a plea seeking transfer of advocate Shahid Azmi’s murder trial.
"I do not find any reason to come to the conclusion that the learned Judge was biased against the applicant. There is no material to apprehend for the applicant that he would not get fair trial before the learned Judge. Hence, no case is made out for transferring the proceedings to any other Sessions Judge," said Justice Prakash D. Naik, while dismissing the petition filed by accused Hasmukh Solanki.
Case Title: M/s. Ashok Commercial Enterprises and Anr. v. Rajesh Jugraj Madhani
Citation: 2023 LiveLaw (Bom) 89
The Bombay High Court held that the application for summary judgment before the Civil Court under Order 13-A of the CPC by a person, whose summary suit is converted to commercial suit, is maintainable.
Justice Sandeep V. Marne held that such conversion would not cause the petitioner to lose both right to seek summary judgment under Order 13-A and pronouncement of judgment under Order 37 Rule 3.
Case Title: Harikesh @ Guddu Madan Kattilwar v. Deputy Police Commissioner
Citation: 2023 LiveLaw (Bom) 90
The Bombay High Court held that subjective satisfaction for passing an externment order cannot be recorded on the basis of a crime in which the accused was acquitted.
Justice G. A. Sanap sitting at Nagpur quashed an externment order and noted that no reason has been given for ordering externment for two years from the entire Amravati District even though all the registered crimes were within the jurisdiction of Frezarpura Police Station, Amravati City.
The court said that the order of externment suffers from the “virus of excessiveness” as the Divisional Commissioner confirmed it despite recording the fact of the petitioner’s acquittal in four of the crimes.
Case Title: Shashikala Kishan Yewale v. State of Maharashtra & Anr
Citation: 2023 LiveLaw (Bom) 91
Observing that it couldn’t be party to a widow being possibly evicted from her lawfully occupied home of 50 years, the Bombay High Court directed the Maharashtra Housing and Development Authority (MHADA) to add her name as a tenant/occupant of the 160 square feet premises in Mumbai.
The division bench of Justices GS Patel and SG Dige noted that on one hand MHADA had a policy to temporarily accommodate even trespassers but in the present case they were insisting on reserving their rights to evict an old woman, lawfully living in the premises.
Case Title: MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation
Citation: 2023 LiveLaw (Bom) 92
Observing that vehicular toll is a tax and not merely contractual debt between the collection company and the civic body, the Bombay High Court dismissed plea by Mumbai based MEP Infrastructure Developers Ltd. (MEPIDL) challenging recovery proceedings for its failure to pay toll collected by it to the Municipal Corporation of Delhi (MCD).
A division bench of Justices G. S. Patel and S.G. Dige further held that once Tehsildar has directed a bank to freeze the accounts of a defaulter against whom recovery certificate is issued, the bank has no power to invite objections from the defaulter.
Match-Maker Cannot Be Charged With Cheating If Groom Allegedly Illtreated Bride: Bombay High Court
Case Title: Shailendra Kumar Dubey v. XYZ
Citation: 2023 LiveLaw (Bom) 93
A match-maker, who praised the groom before the prospective bride’s family, cannot be charged with cheating merely because the man allegedly treated the woman badly and is now accused of domestic violence, the Bombay High court observed.
A division bench of Justices Revati Mohite Dere and Prithviraj Chavan quashed the FIR against the matchmaker, a senior banker, booked along with the husband and his family.
Case Title: Pushkaraj Shekharrao Indurkar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 84
The Bombay High Court dismissed a PIL seeking uniform rules and safety measures for public gathering for the celebrations of Ganpati Utsav.
A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne observed that the petition has not suggested any safety measures.
"In the Writ Petition, not a single instance is narrated, as to how the safety measures are not taken. Further the Petitioner also not suggested any such measures."
Case Title: Ekta Welfare Society v. State of Maharashtra & Ors
Citation: 2023 LiveLaw (Bom) 93
Merely labelling people as “encroachers” and “deploying bulldozers” is not the solution as the scale of human displacement is beyond imagination, the Bombay High Court said in an interim order, while calling for a more considerate approach to address the issue of alleged encroachments.
The division bench of Justice Gautam Patel and Justice Neela Gokhale disapproved of the manner used to demolish around 101 “illegal” structures on Western Railways land and said "no further demolitions are to be carried out until the next date in contravention of the Supreme Court order anywhere on Western Railway lands in Greater Mumbai."
Case Title: Anand s/o Shivaji Ghodale v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 96
The Bombay High Court held that the defence of alibi can be raised as early as possible at the stage of framing charge as there’s no rule providing that such a defence can only be considered at the stage of defence evidence.
Justice SG Mehare of the Aurangabad bench set aside trial court summons issued under section 319 of the CrPC to a man for trial under the POCSO Act observing that the trial court should have considered his defence of alibi.
Case Title: Quess Corp v. Netcore Cloud Pvt Ltd
Citation: 2023 LiveLaw (Bom) 97
The Bombay High Court ruled that there is no clash of interest involved where the Arbitrator had acted as a counsel and represented the Advocate representing the opposite party, in another unrelated matter for some other client.
The bench of Justice Bharati Dangre concluded that the disqualification connection, contemplated under Item 3 of Schedule VII of the Arbitration and Conciliation Act, 1996 (A&C Act), must be between the Arbitrator and the litigant. Thus, where the Arbitrator had accepted a brief from the respondent’s counsel for some other client, the same will not amount to per se disqualification or ineligibility, the Court ruled.
No Reason For AO To Believe Income Chargeable To Tax Escaped Assessment: Bombay High Court
Case Title: Late Bharat Jayantilal Patel v. Deputy Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 98
The Bombay High Court held that the development agreement permitted construction on the land only as a licensee, which did not have the effect of transmitting possession in favor of the licensee as per Section 53A of the Transfer of Property Act.
The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that there was neither any tangible material nor any reason for the assessing officer to believe that "any income chargeable to tax had escaped assessment,". The action of the assessing officer, therefore, would be without jurisdiction.
The petitioner challenged the notice issued under Section 148 of the Income Tax Act, 1961. The assessment for the year 2013-14 was sought to be reopened on the ground that the AO had reason to believe that income chargeable to tax had escaped assessment.
Absence Of Material: Bombay High Court Quashes Reassessment Proceedings
Case Title: Konark Life Spaces v. Assistant Commissioner of Income -Tax
Citation: 2023 LiveLaw (Bom) 99
The Bombay High Court quashed the reassessment proceedings as the issue of "large loans and advances" was not only raised during the scrutiny assessment but also responded to by the assessee.
The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that between the date of the order of assessment, which is sought to be reopened, and the date of the formation of the opinion, nothing new happened. There is neither new information on hand nor reference made to any new material on record.
The petitioner/assessee challenged the notice under Section 148 of the Income Tax Act, 1961, which sought to reopen the assessment. According to the AO, the reasons for reopening were an advance payment made to M/s Nancy Builders and Developers Pvt. Ltd., which remains unexplained. As a result, it was claimed that the petitioner failed to disclose fully and truthfully all material facts required for the reassessment.
Case Title: Abbott India Ltd v. Assistant Commissioner of Income Tax & Ors.
Citation: 2023 LiveLaw (Bom) 100
The Bombay High Court ruled that the CBDT Circular, dated 01.08.2012, as per which the expenses incurred in granting freebies to medical practitioners is inadmissible under Section 37 of the Income Tax Act, 1961, since it is prohibited by law, would not be applicable to the assessment year 2008-09.
The bench of Justices Dhiraj Singh Thakur and Kamal Khata noted that Regulation 6.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which bars the medical practitioners from receiving any gift, cash or monetary grant from any pharmaceutical and allied healthcare industry, is incorporated vide an amendment, with effect from 10th December 2009.
Holding that the CBDT Circular was introduced in view of the amended Regulations of 2002, the Court concluded that neither the CBDT Circular nor Regulation 6.8 of the 2002 Regulations, would be applicable to the assessment year 2008-09.
Case Title: Ashwini Sanjay Babar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 101
Objectionable to morality and human rights that a one-year-old girl has been sold by her mother, the Bombay High Court observed while granting bail to a woman accused of buying another woman’s daughter.
Justice S. M. Modak observed said that the mother sold the child as she was in need of money. “I am at great pains when the word ‘sale’ is used. But the other side of the coin is that her own mother has done this act and the hard reality of the life is that she is in need of money as her husband is behind bar.”
The court noted that now the complainant’s daughter is with her parents. Further, applicant/accused also has two minor children whose welfare has to be considered.
The court said that it is not known when the trial will start and finish and hence there is no need to detain the applicant till the conclusion of the trial.
Case Title: Sajjan s/o Hirchand Gusinge v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 102
The Aurangabad bench of Bombay High Court directed the investigation agencies and trial courts to ensure that the identity of a rape victim is not disclosed even in the charge sheet.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase noted that the principal seat at Bombay has directed that photos showing the victim should be filed by the accused under sealed envelope. It extended these directions to the investigation agencies and the court.
The court stated that certain photos produced in the charge sheet show the victim at the spot of the incident and such material should not be openly added in the charge sheet.
Case Title: CLSA India Private Limited v. Deputy Commissioner of Income Tax & Ors.
Citation: 2023 LiveLaw (Bom) 103
The Bombay High Court reiterated that once the revenue department is aware about the amalgamation and had knowledge regarding the non-existence of the amalgamating entity, an assessment order passed against such amalgamating entity would be void and not merely a procedural defect.
The bench of Justices Dhiraj Singh Thakur and Kamal Khata remarked that merely because the PAN in the name of the non-existent entity/ amalgamating entity had remained active, it would not justify the reassessment proceedings against such non-existent entity.
Case Title: Mohammed Mussaviruddin Mohammed Naziruddin v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 104
The Bombay High Court held that the management of a minority institution cannot act as per its whims and allow a retired employee who retained full retiral benefits to return whenever he desires.
A division bench of Justice Ravindra Ghuge and Justice Sanjay Deshmukh sitting at Nagpur upheld the Education Officer’s order rejecting approval for reinstatement of a retired employee as headmaster of Dr. Zakir Hussain High School, Sailu, Dist. Parbhani.
The court further observed that reinstatement on the basis of a private arrangement between the management and the employee would lead to serious uncertainty and dislodge the candidate selected on the vacancy arising out of such voluntary retirement of an employee.
Case Title: BST Textile Mills Pvt Ltd v. The Cotton Corporation of India Ltd
Citation: 2023 LiveLaw (Bom) 105
The Bombay High Court ruled that the arbitrator cannot be said to have committed a jurisdictional error by allowing a consolidated Statement of Claims (SoC), without the consent of the opposite party/ award debtor, in view of the fact that specific claims pertaining to each of the nine contracts were placed distinctly in the Statement of Claims and the award debtor also chose to file a consolidated counter claim pertaining to all the nine contracts.
Dismissing the challenge to the arbitral award on the ground that the arbitrator had no power and jurisdiction to consolidate the disputes, Justice Manish Pitale observed that the nine contracts were executed between the same parties, consisting of identical arbitration clauses, and the nature of the dispute arising from the said contracts was also identical.
Case Title: Dr. Sunil s/o Nilkanth Washimkar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 106
The Bombay High Court held that only the acceptance of a research paper for publication in a journal is relevant rather than actual publication to determine the author’s eligibility for any post or qualification.
The division bench of Justice Sunil B. Shukre and Justice Vrushali V. Joshi observed that the worthiness of the paper for publication determines eligibility.
The court set aside MPSC’s decision declaring an Associate Professor ineligible for the post of Professor of Cardiology because his fourth research paper was published after the due date. The court observed that the paper had been accepted for publication before the due date.
Case Title: Arvind S/o Sarjerao Devkar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 107
The Bombay High Court recently upheld a man’s conviction for kidnapping and raping his minor student observing that instead of grooming students to become responsible citizens, he created a blot on the pious relationship of a student and a teacher.
A division Justice Vibha Kankanwadi and Justice Abhay S. Waghwase held that being a teacher, the appellant can be presumed to have known her age as he should be aware of the age group of a student studying in the 7th class.
The court opined that appellant’s act of winning over her affection, giving her a mobile phone and inducing her to leave her house shows that he planned everything.
The court held that there is no further requirement of other evidence as the minor girl categorically testified that the appellant committed the offence.
Case Title: Rohit Enterprises v. Commissioner State GST Bhavan
Citation: 2023 LiveLaw (Bom) 108
The Aurangabad Bench of the Bombay High Court held that the provisions of the GST enactment cannot be interpreted so as to deny the right to carry on trade and commerce to any citizen or subject.
"The constitutional guarantee is unconditional and unequivocal and must be enforced regardless of shortcomings in the scheme of GST enactment. The right to carry on trade or profession cannot be curtailed, contrary to the constitutional guarantee under Art. 19(1)(g) and Article 21 of the Constitution of India. If the petitioner is not allowed to revive the registration, the state would suffer a loss of revenue, and the ultimate goal under the GST regime will stand defeated," the division bench of Justice Mangesh M. Patel and Justice S.G. Chapalgaonkar observed.
Case Title: Deluxe Caterers Pvt. Ltd. v. M/s. Narayani Associates
Citation: 2023 LiveLaw (Bom) 109
The Bombay High Court held that invocation of force majeure by Kalaghoda’s Copper Chimney restaurant would not lead to extension of the period for which it was authorized to use its premises.
Justice GS Kulkarni observed that the termination clause and force majeure clause are independent and invoking force majeure would not change the term of the contract.
Case Title: Mahipati Antu Jadhav v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 110
The Bombay High Court held that the NALSA’s scheme for release of undertrial prisoners is meant to bring the attention of the stakeholders i.e., courts, to the undertrial persons languishing in jail, but it cannot override the court’s discretion to grant or refuse bail to such prisoners on merits.
Justice S. M. Modak, while denying bail to a murder accused, observed that nothing can take away the discretion of the court in grant of bail.
Case Title: Sunil Rama Kuchkoravi v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 111
The Bombay High Court allowed a death row convict, who murdered his mother and cut her body parts to eat them, to attend his daughter’s marriage. An Escort Party in civil dress will remain present at the venues.
A division bench of Justice A. S. Gadkari and Justice P. D. Naik observed that his presence is necessary for performing religious ceremonies.
INS Vindhyagiri - MV Nordlake Collision | Liability Can Be Limited At Interim Stage Before Completion Of Trial: Bombay High Court (livelaw.in)
Case Title: Ms. M. V. Nordlake GmbH v. Union of India
Citation: 2023 LiveLaw (Bom) 112
Ruling that the liability of a vessel owner for an accident can be limited at the interim stage before the completion of the trial, the Bombay High Court limited the liability of German company M.V. Nordlake Gmbh for the 2011 MV Nordlake – INS Vindhyagiri collision in Mumbai.
“Once the suit is instituted, it is not imperative that the order to limit liability can only be after a full fledged trial. The Court is not precluded from passing a decree at an intermediate stage without the trial running its full course…there is no embargo either under the provisions of the Code (CPC) or Rules 1980 (Bombay High Court (Original Side) Rules) to entertain the application for limitation of the liability”, Justice N. J. Jamadar held while deciding a Notice of Motion for limitation of liability.
Case Title: Pr. Commissioner of Income-Tax Versus Godrej & Boyce Mfg. Co. Ltd.
Citation: 2023 LiveLaw (Bom) 113
The Bombay High Court upheld the CIT’s order in deleting the addition made on account of interest expenditure as the assessee, Godrej & Boyce, had sufficient interest-free surplus funds to make the investment.
The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that the AO has neither examined the claim in respect of expenditure incurred in relation to the exempt income of the assessee nor recorded any satisfaction with regard to the correctness of the assessee’s claim with reference to the books of account. The disallowance made by applying Rule 8D is not only against the statutory mandate but also contrary to the legal principles laid down.
Case Title: ACC Ltd. v. Dr. Rustum Samboyce And Ors.
Citation: 2023 LiveLaw (Bom) 114
The Bombay High Court held that none of the factors necessary to record finding of negligence have been considered by the trial court in a decision that found ACC Cement negligent for dematerializing (digitizing) an NRI’s shares in someone else’s name.
Justice Amit Borkar observed that prima facie the NRI’s claim was not based on a right created under a statute or under contract.
On March 27, 2017 a civil court held ACC negligent for dematerializing the NRI - Dr. Rustom Sam Boyce’s - shares in someone else’s name despite being put to notice that the shares were stolen.
It allowed the NRI to retrieve 3912 and 6250 shares of ACC along with accrual rights, bonus, dividends, from November 1, 2005. ACC approached the HC against this decree.
Case Title: Naresh Goyal v. Directoratate Of Enforcement And Anr
Citation: 2023 LiveLaw (Bom) 115
The Bombay High Court quashed the Enforcement Directorate (ED)'s ECIR against former Jet Airways Chairman Naresh Goyal and his wife Anita.
The division bench comprising Justices Revati Mohite Dere and Prithviraj Chavan passed the order on a petition filed by the duo seeking quashing of the ECIR registered against them under the Prevention of Money Laundering Act (PMLA).
Case Title: M/s. Perfect Auto v. Santosh Narsingdasji Agrawal
Citation: 2023 LiveLaw (Bom) 116
The Bombay High Court held that a court can fix interim standard rent under the Maharashtra Rent Control Act, 1999 at any stage of a suit for recovery of rent but not in any other kind of suit.
Justice Anil S. Kilor of the Nagpur bench set aside trial court’s order fixing interim rent of a shop premises in a suit for fixation of standard rent.
Case Title: Natraj Sanskrutik Kala Kendra through its proprietor Vishal Nandkishor Gangawane v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 117
The Bombay High Court held that the performers license of Natraj Sanskrutik Kala Kendra, Nashik couldn't have been cancelled on the ground of crime registered against the proprietor as the alleged crime was not committed on the Kala Kendra's premises.
Justice RG Avachat added that since the proprietor has been acquitted of the crime, the ground for cancellation does not exist anymore.
Case Title: Rochem India Pvt. Ltd. Versus CBIC
Citation: 2023 LiveLaw (Bom) 118
The Bombay High Court advised the Central Board of Indirect Taxes (CBIC) to construct GST tribunals to reduce needless litigation in the form of filing writ petitions.
"It would be advisable, to avoid further complications, that the Board issues instructions to incorporate Clause 4.2 of the Circular dated 18 March 2020 in each order which is appealable to the Appellate Tribunal constituted under Section 109 of the Act. This would guide the aggrieved parties as to the future course of conduct and reduce needless litigation in the form of filing writ petitions such as the present ones," the division bench of Justice Nitin Jamdar and Justice Abhay Ahuja said.
Case Title: Kalpesh Shantikumar Mehta & Ors. vs. NKGSB Co-op. Bank Ltd & Anr.
Citation: 2023 LiveLaw (Bom) 119
The Bombay High Court ruled that reference of more than two arbitrations to the same arbitrator under Section 84 of the Multi-State Co-operative Societies Act, 2002 (MSCS Act), involving the same Co-operative Bank, would not fall foul of clause 22 of Schedule V of the Arbitration and Conciliation Act, 1996 (A&C Act).
Noting that in the statutory arbitration contemplated under the MSCS Act, the arbitrator is appointed by the Central Registrar/Commissioner of Co-operative Societies under Section 84 (4) of the MSCS Act, the bench of Justice Bharati Dangre held that the embargo created under clause 22 comes into picture only when the Arbitrator is appointed by one of the parties or an affiliate of one of the parties.
Therefore, the fact that the Arbitrator was appointed on more than two occasions in the past three years, with respect to disputes involving the same Co-operative Bank, would fall outside the purview of the embargo created under clause 22, the Court said.
Case Title: Sandeep Kudale v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 120
The Bombay High Court while quashing two FIRs against a Congress party-worker has observed that expressing an opinion, dissent and condemning what was stated by a Minister can “by no stretch of imagination be said to be an act intended to cause disorder or to incite people to violence.” The court said that this was sine qua non to constitute an offence under Section 153A of the IPC.
A division bench of Justices Revati Mohite Dere and Prithviraj Chavan further observed that the facts of the case did not warrant slapping of Section 153A IPC on such "flimsy grounds”. The bench said that at the highest, one of the words used by the petitioner “can be said to be distasteful” but certainly not warranting registration of the FIR, much less the petitioner’s arrest.
Case Title: Trustees Association of India v. Competition Commission of India & Ors
Citation: 2023 LiveLaw (Bom) 121
The Bombay High Court disposed of four petitions challenging Competition Commission of India’s investigation into alleged cartelization and price fixing by debenture trustee units of Axis, SBICap and IDBI.
A division bench of Justice G. S. Patel and Justice Neela Gokhale kept all contentions including the issue of jurisdiction open and stated that the CCI will have to decide whether it has jurisdiction over the investigation or not.
The court clarified that if the CCI decides it has jurisdiction, it doesn’t have to defer consideration on merits at a later date.
Case Title: Deepak Marda v. Income Tax Officer
Citation: 2023 LiveLaw (Bom) 122
The Bombay High Court held that the fact that a different director of the same company disclosed the income received in a different way cannot be used as justification to reopen the assessment.
The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that the reopening of the assessment was based on a change of opinion, conjectures, and assumptions, as well as blindly relying on information and borrowed satisfaction.
"It is an imperative duty of the authorities to be updated with the law and to apply it to the case at hand before taking decisions and passing orders. Feigning ignorance of the law by authorities only increases the burden on the courts," the court said.
Case Title: Mayur Vaijanath Tawde & Anr. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 123
The Bombay High Court upheld the eviction of two individuals who allegedly mistreated their stepmother from their deceased father's house observing that the elderly stepmother needs comfort and peace in the evening of her life.
Justice RG Avachat upheld the order of the tribunal constituted under section 7 of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007 directing the petitioners to vacate the premises.
Case Title: Manohar s/o. Dnyaneshwar Pote v. Collector, Jalna and Ors.
Citation: 2023 LiveLaw (Bom) 124
The Bombay High Court held that there is no statutory violation by a Sarpanch conducting Gram Sabha meetings consecutively as the Maharashtra Village Panchayat Act, 1958 does not provide for holding Gram Sabha meetings in a particular way.
Justice Arun Pednekar of the Aurangabad bench set aside the disqualification of the Sarpanch of a village in Jalna District who held four Gram Sabha meetings in a short period.
Case Title: Jane Cox v. Bar Council of India
Citation: 2023 LiveLaw (Bom) 125
The Bombay High Court set aside a 17-year-old order passed by the Bar Council of India (BCI) and paved the way for Advocate Jane Cox, a British citizen, to continue her legal practice in India.
A division bench of Justices Gautam Patel and Neela Gokhale, set aside the 2005 order with BCI's consent but kept the question regarding a foreigner's right to practice expressly open.
"Both sides agree that reasons are not necessary for the following order. The Bar Council of India though Mr Shekhar Jagtap states that in the facts and circumstances of the present case the impugned order of the BCI dated February 20, 2005 may be set aside, and the issue of the petitioner's right to practice be concluded in the petitioner's favour. We make rules absolute regarding prayer A and B.
The question of law raised in the petition is expressly kept open with regard to persons other than the present petitioner," the court said.
Case Title: Shoyab Mehtab Ali v. Divisional Commissioner and Anr.
Citation: 2023 LiveLaw (Bom) 126
The Bombay High Court held that the period of incarceration that prisoner has undergone has to be calculated including the period of set off and remission to determine eligibility for parole or furlough under the Maharashtra Prison (Parole and Furlough) Rules.
A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur while setting aside rejection of a prisoner’s parole application held –
“Therefore, while applying Rule 4[2] of the Rules, one has to calculate the period by including the period of set off and remission earned by the petitioner. Therefore, as admittedly the petitioner has undergone the entire period awarded for the offence punishable under Section 397 of the Code, he is eligible for furlough leave.”
