Bombay High Court Monthly Digest: January 2022

Case Title:  XXX vs State of Maharashtra

Case No: Writ Petition (L) NO.31015 OF 2021

Citation: 2022 LiveLaw (Bom) 1

The Bombay High Court has directed the state Government to forthwith constitute medical boards based on the Amended Act on medical termination of pregnancy so as to not cause hardships to women seeking termination of pregnancy.

The bench observed that Section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021 has increased the limitation to undergo medical termination of pregnancy from the earlier 20 weeks to 24 weeks. It further added that section 3(2B), in fact, carved out an exception in cases of foetal abnormalities and did not limit such termination to the 24 weeks period otherwise provided in the subsection.

2. 'Nobody Has A Fundamental Right To A Public Holiday': Bombay High Court

Case Title: Kishnabhai Nathubhai Ghutia & Anr Vs The Hon'ble Administrator Union Territory & Ors.

Case No: Writ Petition (Civil Appellate Jurisdiction) - 9602 OF 2021

Citation: 2022 LiveLaw (Bom) 2

The Bombay High Court has held that declaring a public holiday is a matter of governmental policy, and there is nobody can claim a fundamental right to public holidays. A Divison Bench of Justices Gautam Patel and Madhav Jamdar observed, "There is no legally enforceable right that can be said to have been infringed. Nobody has a fundamental right to a public holiday."

3. IBC & Admiralty Act Interplay - Insolvency Proceedings Against Shipping Company Won't Bar Suit Against Vessel : Bombay High Court

Case Title: Angre Port Private Ltd. Vs. TAG 15 (IMO. 9705550) & Anr

Case No: COMMERCIAL ADMIRALTY SUIT(L) NO. 4 OF 2020

Citation: 2022 LiveLaw (Bom) 3

In a significant judgment, the Bombay High Court has held that a Shipping Company slipping into liquidation under the Insolvency and Bankruptcy Code will not impact an ongoing Admiralty Suit against its Vessel as the two are separate entities. The judgement authored by Justice BP Colabawalla explains the interplay between the bar against further suits and proceedings under S.33 (5) of the IBC, 2016 and the Admiralty Act and the effect that insolvency proceedings would have on admiralty claims. The judgement also holds that Penal Birth Hire charger are not in the nature of a penalty and therefore damages would not have to be proved as required under Section 74 of the Indian Contract Act.

4. S 12 -Legal Representative Cannot Seek Compensation Under Domestic Violence Act AfterWoman's Demise – Bombay High Court

Case Title: Ms. Kanaka Kedar Sapre & Mrs. Sudha Mukund Shukla (Mother) vs . Kedar Narhar Sapre & others

Case No: Cri WP 2790 of 2021

Citation: 2022 LiveLaw (Bom) 4

The Bombay High Court ruled that an aggrieved person, as defined under the Protection of Women from Domestic Violence Act (DV Act), "must be alive at the time of filing of the petition", and someone cannot file an application for monetary reliefs under the act after her demise.

The court dismissed an application filed by a minor girl (through her maternal grandmother) "on behalf of her mother" seeking monetary reliefs, streedhan and compensation against her father and paternal grandparents.

5. Lok Adalat Cannot Adjudicate Disputes Relating To Offences If No Settlement Is Arrived At: Bombay High Court

Case Title: Maharashtra State Electricity Distribution Company Ltd v Badrinath Pema Rathod

Citation: 2022 LiveLaw (Bom) 5

In a significant judgement explaining the interplay of the Legal Services Authority Act, 1987 and the Electricity Act, 2003 a single-judge bench of the Bombay High Court noted that where a dispute brought before the Permanent Lok Adalat amounts to a compoundable offence it can be entertained by the Permanent Lok Adalat for the purpose of effecting a conciliation and settlement. But if the conciliation fails, then it is not within the power of the Permanent Lok Adalat to adjudicate the matter on merits, if it relates to an offence, despite the offence being compoundable.

6. COVID-Supreme Court Order Suspending Limitation Is Applicable For Refund Under GST Act – Bombay High Court

Case Title: Saiher Supply Chain Consulting Pvt Ltd v. Union of India and Anr.

Case No: WPL 1275 of 2021

Citation: 2022 LiveLaw (Bom) 6

The Bombay HC quashed and set aside an order of the Assistant Commissioner of CGST refusing refund of GST paid by a private export company on the ground that the company's application was time barred or not filed within the limitation period prescribed under the Central Goods and Services Tax Act, 2017 (CGST) Act.

A division bench of Justices RD Dhanuka and SM Modak observed that the Supreme Court's decision from March 2020, extending the time limit prescribed under the general or special laws, for proceedings due to the Covid-19 pandemic apply in the present case.

7. Bombay High Court Allows Age-Barred Law Graduate To Participate In Judges Selection As Recruitments Got Stalled Due To COVID

Case Title: Rishab Murali vs State of Maharashtra & oths

Case No: WPL 156/2022

Citation: 2022 LiveLaw (Bom) 7

In an interim relief to a law graduate from Mumbai, the Bombay High Court has allowed him to participate in the ongoing recruitment process for post of Civil Judge (Junior Division)/Judicial Magistrate (First Class), despite being "age-barred."

The petitioner contended that he was age-barred as the Maharashtra Public Service Commission (MPSC) did not issue any advertisement for applications last year due to the Covid-19 pandemic.

8. Bombay HC Reinstates CISF Constable Accused Of Raping Colleague's 5-yr-old Daughter

Case Title: Udaynath Tirkey vs The Director General, Central Industrial Security Force & othrs

Case No: WP 6859 of 2019

Citation: 2022 LiveLaw(Bom) 8

The Bombay High Court has held that being accused of a heinous crime is not a good enough reason not to conduct a departmental enquiry before dismissing a constable from service under Rule 39(ii) of the Central Industrial Security Force (CISF) Rules akin to Article 311(2) of the Constitution.

The court quashed the Central Industrial Security Force (CISF)'s orders regarding the dismissal of a constable for allegedly raping a colleague's five-year-old daughter. Instead, it ordered the constable's reinstatement with a rider that CISF was not barred from initiating an enquiry subsequently.

9. Senior Citizens Act: Bombay High Court Refuses Relief To Son Who Became Mother's Tenant & Dishoused Her Without Rent

Case Title: Suryakant Kisan Pawar vs Deputy Collector, Mumbai and others

Citation: 2022 LiveLaw (Bom) 9

The Bombay High Court directed a son who "deprived his mother from leading a normal life" to vacate the house "expeditiously", noting that the mother had suffered immensely since over five years.

Justice Girish Kulkarni observed that it was "astonishing" how the 48-year-old son had invented a novel way of entering the septuagenarian mother's house. He signed a rent agreement with her, with no intention of honouring the agreement as he didn't pay a single rupee to her until she did not approach the authorities against him.

10. Mercy Petitions Not Decided For Over 7 Years' : Bombay High Court Commutes Death Penalty Of Two Women

Case Title: Renuka & Anr. v. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 10

Sixteen years after the Supreme Court upheld the death penalty of half-sisters Renuka Shinde and Seema Gavit for kidnapping 13 children and murdering at least five of them, the Bombay High Court has commuted their sentence to life imprisonment, due to the 7 years, 10 months and 15 days delay in deciding their mercy petitions.

"Despite this legal position only due to the casual approach of the officers of the respondent state (Maharashtra) the mercy petitions were not decided…Though the procedure for deciding mercy petitions mandates speed and expediency the state machinery showed indifference and laxity at each stage. That it took seven years only for the movement of files of such a grave issue is unacceptable when electronic communications were available to be used."

11. Motor Accident Claim| 'Future Prospects' Ought To Be Allowed For Those With Notional Income: Bombay High Court

Case Title: Mulchand Dhanji Shah & Anr. V. Mr. Noordam Iraj Ahmad & Ors.

Case No: First Appeal No. 1005/2019 (Civil Appellate Jurisdiction)

Citation: 2022 LiveLaw (Bom) 11

The Bombay High Court ruled that lack of evidence supporting the income of the deceased does not justify ascertaining notional income at the minimum tier of wage in determining compensation.

It partly allowed an order of the Motor Accident Claims Tribunal, Mumbai, in an appeal against the compensation awarded to kin of a deceased of a motor accident.

12. Transfer Of Tenancy Does Not Amount To Creation Of New Tenancy: Bombay High Court

Case Title: Alice Realities Pvt Ltd v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 12

A Bench of Justices G.S.Patel and Madhav J.Jamdar of the Bombay High Court observed that the transfer of tenancy would not amount to the creation of a "new" tenancy under the MHADA Act and Development Control Regulations, 1991.

The Court held that in cases of mere transfer of tenancy, which is not the same as creation of new tenancy, the prohibition in DCR 33 (7) and Appendix-III would not apply. It also holds that the only concern under the Rent Act and DC Regulations should be whether a new tenancy has been created and not whether the entities which have acquired tenancy are connected to one another.

13. Death Caused By Stress & Strain During Employment - Bombay High Court Directs Employer To Compensate

Case Title: Smt. Harvinder Kaur Vishakha Singh vs Tarvinder Singh K. Singh

Citation: 2022 LiveLaw(Bom) 13

The Bombay High Court directed an employer to compensate the kin of a truck driver, observing that the stress and strain caused during his employment had ultimately led to his demise.

Justice NJ Jamadar held that the deceased driver's heart attack could be termed an accident arising out of and in the course of his employment, as contemplated under Section 3 of the Workman's Compensation Act.

"I am persuaded to hold that in the facts of the instant case, the death of the deceased can be said to have been accelerated on account of the stress and strain associated with the long distance driving for almost 18 days in trying circumstances. Any other view of the matter would defeat the beneficial object of the provisions contained in Section 3 of the Employees Compensation Act,1923."

14. IBC| Statutory Authority Can't Raise Fresh Claim Against Corporate Debtor After Approval Of Resolution Plan: Bombay High Court

Case Title: Murli Industries Limited v. Assistant Commissioner of Income Tax and Ors.

Citation: 2022 Live Law (Bom) 14

The Bombay High Court ruled that no statutory authority, including the Income Tax authorities, can raise a fresh claim against a Corporate Debtor after the Resolution Plan was finalized and approved.

A division bench of Justices Sunil Shukre and Anil Pansare of the Nagpur Bench of High Court observed that entertaining undecided claims after the Resolution Plan was submitted, would lead to uncertainty about the amount payable by the prospective Resolution Applicant who would've successfully taken over the business of the Corporate Debtor.

15. Unregistered Agreement Can't Be Enforced Under Employees Compensation Act To Seek Higher Compensation: Bombay High Court

Case Title: Mosa Anand Rajulu vs. M/s. V. Ships Monaco and Another

Citation: 2022 LiveLaw(Bom) 15

An unregistered agreement between an employer and employee cannot be enforced to seek more compensation than what is already prescribed for cases of disability under the Employees Compensation Act 1923 (ECA), the Bombay High Court held.

"Section 29 thus reinforces the principle that compensation is required to be paid in accordance with provisions of the Act, 1923, save and except in a case where the agreement is registered under section 28," the court held.

16. Section 60/61 Contract Act - If Adjustment Is Made Towards A Particular Invoice, It Can't Extend Limitation For Other Outstanding Invoices: Bombay High Court

Case Title: Anmol Steel Processors Pvt Ltd vs Colour Roof (India) Ltd

Citation: 2022 LiveLaw (Bom) 16

The Bombay High Court held that once payment is adjusted at the creditor's discretion under Section 60 of the Contract Act only to a few of the pending invoices instead of all, and the period of limitation has expired regarding all of them, the creditor then cannot claim a cheque getting dishonoured will extend the period of limitation on all pending payments.

17. Change Of Assessing Officer's Opinion Not Ground To Reopen Assessment U/S 147 Income Tax Act, Tangible Material Required: Bombay High Court

Case Title: Vodafone Idea Ltd v Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw (Bom) 17

In a case under Section 147 of the Income Tax Act, 1961, the Bombay High Court observed that where on consideration of material on record, one view is conclusively taken by the Assessing Officer, it would not be open to reopen the assessment based on mere change of opinion.

The Court further held that assessment can be reopened under Section 148 only on a reasonable belief that income had escaped assessment on account of failure of the assessee to disclose truly and fully all material facts that were necessary for computation of income but not in a case where the assessment is sought to be reopened on account of change of opinion of the Assessing Officer.

18. Completion Of Investigation Not A Condition Precedent For Eligibility Under 'Sabka Vishwas' Scheme: Bombay High Court

Case Title: Nabeel Construction Pvt.Ltd vs Union Of India And 2 Ors

Citation: 2022 LiveLaw (Bom) 18

Observing that a liberal interpretation had to be given to the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 (SVLDRS) as the intent was to unload the baggage relating to legacy disputes pre-GST era, the Bombay High Court quashed a show-cause cum-demand notice against a construction company.

19. Motor Accident Compensation: Claimant Entitled To Future Loss Of Income Proportionate To Extent Of Disability Though There Is No Total Loss Of Income: Bombay High Court

Case Title: Hareshwar Harishchandra Mistry v Pravin B. Nayak

Citation: 2022 LiveLaw (Bom) 19

The Bombay High Court held that while determining the compensation that the applicant would be entitled to on account of loss of future earnings, even if the applicant has not suffered total loss of income due to permanent disability. It was held that the claimant would be entitled to proportional of notional income corresponding to the extent of his disability. Accordingly, the Court enhanced the compensation awarded to the appellant-claimant from Rs.50,000 to Rs.2,70,000.

20. State Instrumentalities Not Having Power To Create Posts Cannot Regularise Workers: Bombay High Court Reiterates

Case Title: Raigad Zilla Parishad & Ors v Kailash Balu Mhatre & Ors

Citation: 2022 LiveLaw (Bom) 20

Bombay High Court reiterated that Standing Order 4C of the Model Standing Orders, framed under the Industrial Employment (Standing Orders) Act, 1946 cannot be invoked with reference to State Instrumentalities or such local authorities, which do not have the power of creating posts.

When an establishment cannot create posts, the declaration of ULP under Item 6 cannot be made against such establishment since temporary workers cannot be regularised, in the absence of sanctioned permanent posts.

21. Maharashtra Rent Control Act - Affidavit Mandatory For Application Seeking Leave To Defend Under Sec 43(4): Bombay High Court

Case Title: Laxman Dadasaheb Jagtap v Additional Commissioner, Konkan

Citation: 2022 LiveLaw (Bom) 21

In a recent case, the Bombay High Court reiterated that in the absence of an affidavit, a simple application for leave to defend would not enable a petitioner to claim benefit of Section 4 of the Limitation Act.

Section 4 of the Limitation Act provides that - Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

22. 'Girl Child Is Not Property That Can Be Donated': Bombay HC Disturbed At 'Danpatra' By Gangrape Victim's Father To Godman

Case Title: Shankeshwar @ Shambhu s/o Bhausaheb Dhakne vs The State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 22

A girl child is not property that can be donated, the Bombay High Court (Aurangabad Bench) observed during a bail hearing after it noticed a 'danpatra' according to which the rape victim's father had allegedly donated her to a self-proclaimed godman.

Justice Vibha Kankanwadi directed the Child Welfare Committee (CWC) to ascertain if the teen was fit to be declared as a 'child in need of care and protection' as contemplated under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act.

23. 'CCTVs In Police Stations Deliberately Kept Non-Functional' : Bombay High Court Seeks Report From Maharashtra Govt

Case Title: Somnath Laxman Giri vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 23

The Bombay High Court took strong exception to the seemingly deliberate non-functioning of CCTV cameras inside police stations and directed Maharashtra's Chief Secretary to take "stern action" against police officers for not reporting cameras that required repair.

24. Not Required To Show Prejudice, Where There Is Violation Of Fundamental Rights – Bombay High Court Directs Customs To Pay Rs. 2cr For 23 Year Delay

Case Title: Sushitex Exports (India) Ltd. & Ors. Vs. The Union of India & Anr

Citation: 2022 LiveLaw (Bom) 24

The Bombay High Court directed the Customs department to refund Rs 2 crore along with an interest of 12% per annum to a fabric-exporter due to the delay of 23 years in deciding a fraud case initiated against him.

A division bench of Chief Justice Dipankar Datta and Justice MS Karnik observed while setting aside the demand notice, "While the respondents' right in law to initiate proceedings for violation of the provisions of the Act can never be disputed, at the same time they do not have the unfettered right to choose a time for its termination and conclude proceedings as per their convenience."

25. Consider Decentralization Of Medical Purchases For Hospitals : Bombay High Court To Maharashtra Govt

Case Title: CH Sharma & Oths Versus State of Maharashtra and others

Citation: 2022 LiveLaw (Bom) 25

The Nagpur Bench of the Bombay High Court directed the Maharashtra Government to consider de-centralizing the purchase of medical essentials for medical colleges and hospitals in the state.

"We are of the view that in the interest of efficient management of Hospitals and making available proper treatment to patients being admitted to the Government Hospitals in an effective and quicker manner, it is necessary that the Deans of these colleges are permitted to make purchases of all the medical essentials at their respective levels…" the bench observed.

26. "Shocking" Can't Keep A Prisoner In Solitary Confinement For More Than 14 Days - Bombay High Court Rescues Convict After 2.4 Years In Anda Cell

Case Title: Shaikh Ruheena vs The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 26

"I have forgotten how to communicate with human beings, every human feeling has been wiped out, even animals are not kept like this," Imran Shaikh a convicted prisoner in solitary confinement for 2 years and four months, had written in anguish to the Superintendent of Central Prison, Aurangabad, in vain.

Last week, the Bombay High Court's Aurangabad bench took cognisance of Shaikh's wife's letter, and directed prison official to transfer him to an ordinary prison cell with immediate effect, and ordered a team of doctors visit prison and ascertain his condition.

The court, further, directed the Chief Judicial Magistrate, Aurangabad, to visit Shaikh in prison, record his statement and report to the HC on the condition of the Anda cell.

27. S.45 PMLA: Twin Conditions For Bail That Were Declared Unconstitutional By SC Stand Revived By 2018 Amendment Act: Bombay High Court

Case Title: Ajay Kumar v Directorate of Enforcement

Citation: 2022 LiveLaw (Bom) 27

In a recent case, a two-judge bench of the Bombay High Court noted that the twin conditions for bail in section 45(1) of the Prevention of Money Laundering Act, 2002 which were declared unconstitutional by the judgment of the Apex Court in Nikesh T.Shah Vs. Union of India (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018.

In doing so, the division bench has departed from the view earlier expressed by a single bench of the Bombay High Court in Sameer M. Bhujbal Vs. Assistant Director, Directorate of Enforcement.

Other Significant Updates

1. FIR Against Google CEO Sundar Pichai, YouTube MD Gautam Anand And Others In Copyright Infringement

The Mumbai police, on January 26, registered an FIR against the CEO of Google, Sundar Pichai, along with five others in a copyright infringement case. Gautam Anand, Managing Director of YouTube, is also an accused in the case.

The FIR was registered following a Magistrate's order under section 156(3) of the CrPC on a private complaint filed by producer Suneel Darshan regarding his 2017 film "Ek Haseena Thi Ek Deewana Tha" being illegally uploaded on YouTube.

2. Seems She Is The Victim': Mumbai Court Discharges Shilpa Shetty In Obscenity Case Over 2007 Richard Gere Kissing Incident

A Metropolitan Magistrate Court at Ballard Pier discharged actress Shilpa Shetty in an obscenity case from 2007. Shetty was booked after Hollywood Actor Richard Gere hugged and kissed her during an AIDS awareness event in Alwar, Rajasthan.

Shetty and Gere were booked under Sections 292 (Sale, etc., of obscene books), 293 (Sale, etc., of obscene objects to young person), 294 (Obscene acts and songs), 120B (criminal conspiracy) of the IPC, Section 67 of the IT Act and sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act.