Bombay High Court Monthly Digest: May, 2022 [Citation 170-198]

Sanjeev Kumar Versus UOI 2022 LiveLaw (Bom) 170

Mohd. Luthpura Vajidali Shaikh vs State of Maharashtra 2022 LiveLaw (Bom) 171

Adv. Firoz Babulal Sayyed Vs. The Union of India & Anr. 2022 LiveLaw (Bom) 172

Dr P Varavara Rao & othrs vs State of Maharashtra and othrs 2022 LiveLaw (Bom) 173

Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters 2022 LiveLaw (Bom) 174

Indiabulls Housing Finance Ltd. and Ors. v. State of Maharashtra and Anr. , with connected matter 2022 LiveLaw (Bom) 175

Alnesh Akil Somji Versus The State of Maharashtra 2022 LiveLaw (Bom) 176

Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors. 2022 LiveLaw (Bom) 177

Omkar Mahadeo Supekar vs MCGM 2022 LiveLaw (Bom) 178

Armstrong Pure Water Services Pvt. Ltd. Versus Union of India and others 2022 LiveLaw (Bom) 179

Amol Kashinath Vyavhare Versus Purnima Chaugule Shrirangi And Others 2022 LiveLaw (Bom) 180

The State of Maharashtra Vs Guddu Krish Yadav, 2022 LiveLaw (Bom) 181

Ansari Mohammed Zaki vs The State of Maharashtra 2022 LiveLaw (Bom) 182

Adani Electricity Mumbai Ltd. vs The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors., 2022 LiveLaw (Bom) 183

Sandeep Dwellers Private Limited Vs The State of Maharashtra & ors, 2022 LiveLaw (Bom) 184

Bafna Motors Private Limited versus Amanulla Khan, 2022 LiveLaw (Bom) 185

M/s Atul & Arkade Realty v. I.A. & I.C. Pvt. Ltd., Arbitration Application No. 72 of 2013, 2022 LiveLaw (Bom) 186

Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, 2022 LiveLaw (Bom) 187

Vapi Infrastructure and Industrial Township LLP Versus Income Tax Officer Ward, 2022 LiveLaw (Bom) 188

ABC Versus The State of Maharashtra and Anr., 2022 LiveLaw (Bom) 189

Prem Rajendra Prasad Dubey vs The State of Maharashtra 2022 LiveLaw(Bom) 190

Ganpatrao Janardhan Patil vs State of Maharashtra 2022 LiveLaw(Bom) 191

Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax 2022 LiveLaw(Bom) 192

Praful A. Mehta versus Nainesh M. Gandhi 2022 LiveLaw(Bom) 193

Souvenir Developers (I) Pvt. Ltd. versus Union of India 2022 LiveLaw(Bom) 194

Sheetal Devang Shah versus Presiding Officer 2022 LiveLaw(Bom) 195

Harish Chandra Damodar vs UOI 2022 LiveLaw (Bom) 196

Balusha Santosh Bhasal and Anr. Versus State of Maharashtra and Ors 2022 LiveLaw (Bom) 197

Shamrao Piraji Kadam v Prakash Shivaji Chavan and ors 2022 LiveLaw (Bom) 198

Orders/Judgments

1. Assessee Deprived Of Refund Due To Wrongful Withholding Of Amount By Income Tax Dept.:Bombay High Court Imposes 6% Interest

Case Title: Sanjeev Kumar Versus UOI

Citation: 2022 LiveLaw (Bom) 170

The Bombay High Court bench of Justice S.G. Mehare and Justice R.D. Dhanuka has allowed 6% interest to the assessee on wrongful withholding of the amount by the income tax department.

Based on orders passed by the Supreme Court and Delhi high Court the bench said that "the assessee who is deprived of refund of their amount in view of wrongful withholding of their amount by the authority cannot be refused to compensate for such wrongful deprivation of their amount lying with the authority for no fault of the assessees."

2. Bombay High Court Decides Man's Appeal A Year After He Completed Punishment Of 10 Yrs Imprisonment, Reduces Sentence

Case Title: Mohd. Luthpura Vajidali Shaikh vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 171

The Bombay High Court decided a labour contractor's appeal, a year after the 30-year-old man had served his complete 10-year-sentence and was released from the central Prison.

The bench of Justice PD Naik upheld Luthpura Shaikh's conviction only for seven years regarding possession of counterfeit currency (489-B of IPC) and acquitted him for graver charges attracting the 10-year-sentence.

3. 'No Legally Enforceable Right Infringed': Bombay High Court Dismisses Plea To Prohibit Newspapers From Publishing Pictures Of Gods & Goddesses

Case Title - Adv. Firoz Babulal Sayyed Vs. The Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 172

The Bombay High Court dismissed an Advocate's PIL seeking directions for a policy restricting publication of photographs of gods and goddesses in the newspapers as they ultimately land up in the garbage bin.

The bench held that the matter was entirely within the domain of the legislature, or to a limited extent, within the domain of the executive. The bench restated, that a writ petition would lie only if a legally protected right, which is judicially enforceable, is abrogated or infringed or is threatened to be abrogated or infringed by arbitrary executive action.

4. Breaking: Bombay High Court Rejects Review Plea Seeking Default Bail To Varavara Rao, Vernon Gonsalves & Arun Ferreira

Case Title: Dr P Varavara Rao & othrs vs State of Maharashtra and othrs

Citation: 2022 LiveLaw (Bom) 173

The Bombay High Court held re-hearing of the matter on a point which was not at all urged, is impermissible in law, under the guise of review. Nor can review be claimed or asked for merely for a fresh hearing or canvassing a totally new submission.

The bench thus rejected a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking default bail alleging factual corrections in the order refusing them default bail.

The fact that the accused had also filed for default was not argued before the court.

"We, therefore, find it difficult to accede to the submission on behalf of the applicants that a factual error had crept in… It is trite that disguised as a review, it is not permissible even for an erroneous decision to be, "re-heard and corrected".

5. 2008 Indian Mujahideen Case: 14 Yrs On, Bombay High Court Orders Re-Adjudication Of Accused' Plea To Drop MCOCA Charges

Case Title: Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 174

The Bombay High Court has directed the Special Court to re-adjudicate the plea of an accused seeking to drop charges under the Maharashtra Control of Organised Crime Act (MCOCA) against 23 men arrested over 13-14 years ago in the Indian Mujahideen Case.

A division bench observed that an application seeking to drop certain charges was pending before the trial court when charges were framed in 2013 and the court couldn't have framed charges before disposing of the application.

6. Continuity Of Proceedings Will Be 'Abuse Of Process': Bombay High Court Quashes Cheating FIR Against Indiabulls

Case Title: Indiabulls Housing Finance Ltd. and Ors. v. State of Maharashtra and Anr. , with connected matter

Citation: 2022 LiveLaw (Bom) 175

The Bombay High Court recently allowed a plea by Indiabulls Housing Finance Limited (IHFL) seeking to quash a FIR lodged by a shareholder against the company and its promoters, alleging cheating, criminal breach of trust. The Court also quashed a Magistrate Court's order, directing registration of FIR.

The bench was of the view that the Magistrate was influenced by the length of the complaint, and arrived at a conclusion that there was a diversion of huge monetary funds to the tune of Rs. 300 crores and the money was transferred to other country i.e., Mauritius.

"Admittedly, it was only allegations in the complaint and except bare words of the complainant there was no other material before the Magistrate to form such an opinion as such, there is merit in the submissions of learned Senior Counsel Mr. Rohatgi that the Magistrate without applying his mind passed mechanical order under Section 156(3) of Code of Criminal Procedure."

7. Section167(2) CrPC- Investigating Agency Can't Curtail Accused' Right To Default Bail By Invoking Graver Charges: Bombay High Court

Case Title: Alnesh Akil Somji Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 176

The Bombay High Court has clarified that an investigating agency cannot thwart the right to default bail of an accused by merely invoking graver charges.

It opined that the Court, while considering the plea for default bail, would be required to look into the generality of the allegations made and the material collected. In a given case where ex-facie the provision is not attracted, the Court may not be bound by the same.

8. NOC Not Mandatory For Registering Sale Of Fragmented Land: Bombay High Court Strikes Down Provision In Maharashtra Registration Rules, 1961

Case Title: Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 177

The Bombay High Court has read down Rule 44(1)(i) of the Maharashtra Registration Rules, 1961 which imposed additional conditions on the person seeking registration of sale deeds for lands of certain size and therefore produce a No Objection Certificate for fragmentation of the land from the competent authority.

A circular issued by the Inspector General of Registration and Controller of Stamps (IGRCS), on July 12, 2021 based on Rule 44(1)(i), mandated enclosure of permission from the concerned authority in view of section 8B of the Maharashtra Prevention of Fragmentation and Consolidation of Holding (Amendment) Act, 2015. The circular barred Sub-Registrar's from registering any sale/transfer deed, if the no objection from the competent authority was not produced.

9. "SureIt Is Illegal": Bombay High Court Stops Work Of Powai Cycling &Jogging Track, Directs Restoration

Case Title: Omkar Mahadeo Supekar vs MCGM

Citation: 2022 LiveLaw (Bom) 178

In a huge setback for the civic body, the Bombay High Court held that the ongoing work for the cycle and jogging track around the Powai-lake is illegal and directed restoration of the reclaimed land.

The court held that the cycle track was a breach of Development Control Regulation 2034, [34 3.3 clause 7] mandating no construction for 100 meters from the periphery of the lake.

10. Bombay High Court Directs Assessee To Pay Rs.25,000 to Assessing Officer As The Stay Order Was Not Proactively Communicated

Case Title: Armstrong Pure Water Services Pvt. Ltd. Versus Union of India and others

Citation: 2022 LiveLaw (Bom) 179

The Bombay High Court bench of Justice N.R.Borkar and Justice K.R.Shriram held that the a litigant should have been proactive and promptly communicated the stay granted by the Court to the Assessing Officer.

11. Not Offence U/S 505(2) IPC: Bombay High Court Quashes FIR Against Journalist For Reporting On Differences Between Police Departments In Solapur

Case Title: Amol Kashinath Vyavhare Versus Purnima Chaugule Shrirangi And Others

Citation: 2022 LiveLaw (Bom) 180

Publishing news reports about friction between police officers from different departments doesn't amount to creating ill-will among classes as defined under section 505(2) of the IPC, the Bombay High Court has held.

The bench noted that ingredients of 505(2) of the IPC are that the publication of the article must be with the "intent to create or promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever."

12. Can't Get Carried Away By Heinousness Of Crime – Bombay High Court Acquits Man on Death Row

Case Title: The State of Maharashtra Vs Guddu Krish Yadav

Citation: 2022 LiveLaw (Bom) 181

The court acquitted a man sentenced to death by a sessions court in 2015 for the double murder of a colleague and his wife by pouring acid on the sleeping couple as revenge tactic for complaining to about him their employer.

"Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder on the accused," the bench observed noting that the police seems to have fabricated the dying declaration.

13. "Sell Builder's Property In 15 Days If No Settlement With Buyer": Bombay High Court On Unexecuted MAHARera Orders

Case Title: Ansari Mohammed Zaki vs The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 182

Cracking the whip against revenue authorities who failed to execute MahaRERA orders in favour of a flat purchaser, the Bombay High Court directed the attachment and sale of a builder's property within merely 15 days if settlement talks fail.

14. Bombay High Court Imposes 2 Lakh Cost On Adani Electricity For Workers Union, Says Law So Unambiguous Even Reliance Or BSES Didn't Raise Dispute

Case Title: Adani Electricity Mumbai Ltd. vs The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors.

Citation: 2022 LiveLaw (Bom) 183

The Court imposed costs of Rs. 2 lakh on Adani Electricity Limited payable to Mumbai Electric Workers' Union while dismissing a petition in which the company claimed it was no covered under Maharashtra Industrial Relations Act, 1946 (MIR Act).

15. Stamp Duty Refund Also Applicable To All Development Agreements Signed Between Sep, 2020- March 2021 - Bombay High Court

Case Title: M/s. Sandeep Dwellers Private Limited Vs The State of Maharashtra & ors

Citation: 2022 LiveLaw (Bom) 184

All Development Agreements signed between September 1, 2020 and March 31, 2021 would qualify for 1.5-2% refund of stamp duty as per the scheme announced by the Maharashtra Government during the Covid-19 pandemic in the year 2020, the Bombay High Court ruled.

In the landmark judgement, the HC held that the stamp duty payable on a Development Agreement is as per the duty payable on a Conveyance under Article 25 of the Maharashtra Stamp Act, 1958 and, therefore, Development Agreement would have to be treated at par with an instrument of Conveyance.

16. Claim For Recovery Of Security Deposit Or Damages Under License Agreement Is Arbitrable & Not Barred By Section 41 Of The Small Cause Courts Act: Bombay High Court

Case Title: Bafna Motors Private Limited versus Amanulla Khan

Citation: 2022 LiveLaw (Bom) 185

The Bombay High Court reiterated that where the parties to a Leave and License Agreement are governed by an Arbitration Agreement, determination of the dispute relating to recovery of the security deposit under the said License Agreement through arbitration is legally permissible.

The Single Bench of held that the expression "charges" as provided under Section 41 of the Presidency Small Cause Courts Act, 1882, which confers exclusive jurisdiction to the Small Causes Court with respect to a dispute between a licensor and a licensee relating to recovery of an immovable property situated in Greater Bombay or recovery of licence fee, charges or rent, cannot subsume in its fold a claim for damages.

17. The Court Shall Refer The Parties To Arbitration When There Is A Duality Of Expert Opinion As To The Genuineness Of The Agreement: Bombay High Court

Case Title: M/s Atul & Arkade Realty v. I.A. & I.C. Pvt. Ltd., Arbitration Application No. 72 of 2013.

Citation: 2022 LiveLaw (Bom) 186

The Bombay High Court held that when an allegation as to the fraud and forgery committed in the execution of the agreement is made and there is a duality of expert opinion on the genuineness of the agreement, the court shall refer the matter to the arbitrator.

The Single Bench of Justice N.J. Jamadar has held that when the underlying document in which the arbitration agreement is contained is alleged to be affected by fraud and forgery and there is uncertainty as to the veracity of the signatures on the agreement, the Court shall appoint the arbitrator to decide on the dispute.

18. Can Transit Anticipatory Bail Be Granted For Offences In Other States? Bombay High Court Refers To Larger Bench

Case Title: Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 187

The division bench of the Bombay High Court referred to a full bench the question whether the trial courts or High Courts can grant transit anticipatory bail to an accused when the offence against him is registered in another state, beyond the court's jurisdiction.

A division bench of Justices S S Shinde and S V Kotwal widened the scope of the reference by adding issues like whether such courts are empowered to grant permanent anticipatory bail or if protection can be granted under Article 226 of the Constitution.

19. Credit Worthiness Of The Creditor And Genuineness Of Transaction Explained By The Assessee: Bombay High Court Quashes Re-assessment Notice

Case Title: Vapi Infrastructure and Industrial Township LLP Versus Income Tax Officer Ward

Citation: 2022 LiveLaw (Bom) 188

The Bombay High Court quashed a reassessment notice after the assessee explained the credit worthiness of the creditor and the genuineness of the transaction.

The division bench observed that the re-opening proposed was purely based on a change of opinion. The assessing officer was also satisfied with the credit worthiness and details provided by third party lenders.

20. Maharashtra Govt Agrees To Consider Appointment Of Woman To Police Department Three Yrs After Medical Test Declared Her 'Male'

Case Title: ABC Versus The State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 189

The Bombay High Court disposed of a petition after the State Government assured the court that it would sympathetically and expeditiously consider the case of a young woman for appointment to a non-constabulary post in the police department, three years after a medical test declared her a "male."

The woman had qualified with flying colours in 2018 from the Nashik Rural Police Recruitment drive from the Scheduled Caste category but based on her medical test, her marks didn't make the cut off for the men's category.

21. Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High Court Grants Bail To POCSO Accused

Case Title: Prem Rajendra Prasad Dubey vs The State of Maharashtra

Citation : 2022 LiveLaw(Bom) 190

The Bombay high Court observed that kissing and touching private parts are prima facie not unnatural offences under Section 377 of the Indian Penal Code, therefore it granted bail to a man accused of a minor boy's sexual assault.

Regarding offences under sections 8 and 12 of the POCSO Act with maximum punishment of five years, the bench observed that the applicant is in custody for almost one year, the charge is not yet framed and trial is not likely to commence in the immediate future.

22. Boy Hangs Himself After School Chairman Calls Him "Nalayak, Jhopadpatti-Chhap": Bombay High Court Denies Anticipatory Bail

Case Title: Ganpatrao Janardhan Patil vs State of Maharashtra

Citation: 2022 LiveLaw(Bom) 191

The Bombay HC denied anticipatory bail to the Chairman and disciplinary authority of a school in a case of abetting a student's suicide as he "shattered the tender mind" and "put him in deep frustration."

Justice Vinay Joshi observed that a young student had lost his life in proximity from the act of the applicant and custodial interrogation was necessary for the case where the investigation was in progress.

"As per the statements of witnesses, the applicant has scolded the deceased minor boy in an unruly manner. He had also called his parents to the school…Prima facie suggests that the applicant has created an impression in the mind of the student to put him in deep frustration. It requires to be noted that there is a direct link of the applicant's act since within few hours from the episode, the child has ended his life by suicide," the court observed.

23. Assessment Can't Be Reopened On Mere Change Of Opinion Of AO: Bombay High Court

Case Title: Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw(Bom) 192

The Bombay High Court, while quashing a reassessment notice, held that the assessment could not be reopened on a mere change of opinion of the Assessing Officer (AO).

The division bench of Justice K.R. Shriram and Justice N.R. Borkar observed that the reopening of assessment was merely on the basis of a change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment.

24. Novation Of Partnership Deed, Arbitration Clause Contained In The Deed Can Be Invoked: Bombay High Court

Case Title: Praful A. Mehta versus Nainesh M. Gandhi

Citation: 2022 LiveLaw(Bom) 193

The Bombay High Court held that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator.

The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm.

25. Loss On Trading In Derivatives Of Securities Not A Speculative Loss, Can Be Set Off Against Business Income: Bombay High Court

Case Title: Souvenir Developers (I) Pvt. Ltd. versus Union of India

Citation: 2022 LiveLaw(Bom) 194

The Bombay High Court ruled that transactions in respect of trading in derivatives carried out in a recognized stock exchange are excluded from the definition of "speculation transaction" under the Income Tax Act, 1961.

The Bench, consisting of Justices R.D. Dhanuka and S.G. Mehare, held that an assessee is thus entitled to claim set off of the loss suffered by it in the said transactions in derivatives against its business income. The Court added that the explanatory notes on the provisions of the Finance Act, 2005, clearly indicate that an eligible transaction in respect of trading in derivatives of securities, carried out on a recognized stock exchange, shall not be deemed as a speculative transaction.

26. Can't Ask Daughter-In-Law To Pay Mother-In-Law Maintenance Under Senior Citizens Act : Bombay High Court

Case Title: Sheetal Devang Shah versus Presiding Officer

Citation: 2022 LiveLaw(Bom) 195

The Bombay High Court observed that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman's income.

"We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law)," the HC observed.

It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines 'children,' includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law.

27. [Mumbai Local] Season Ticket Proof Of Bonafide Passenger For Accident Compensation Under Railway Act Even If ID Card Not Produced: Bombay High Court

Case Title: Harish Chandra Damodar vs UOI

Citation: 2022 LiveLaw (Bom) 196

A person holding a season ticket is a bonafide "passenger," for the purpose of claiming compensation under the Railway Act 1989 even in the absence of an identity card, the Bombay High Court held.

Unless the passenger was using a season ticket issued in someone else's name, a proper season ticket without an identity card, ipso-facto, would not render season ticket invalid or the passenger a ticketless traveller.

28. Bombay High Court Directs Maharashtra Govt To Consider Law Student's Representation For Uniformity In Examination Pattern & Mode In All Universities

Case Title: Balusha Santosh Bhasal and Anr. Versus State of Maharashtra and Ors

Citation: 2022 LiveLaw (Bom) 197

The Bombay High Court directed the Maharashtra Government to consider a law student's representation seeking uniformity in the method and pattern of examination for undergraduate students in all universities across the State.

The court further held that the State should consider the issue as the petitioners were seeking to enforce a decision taken in the meeting between the Minister of Higher and Technical Education, Maharashtra and Vice-Chancellors of all state Universities on April 25, 2022.

29. Service Of Summons Not Complete If Accepted By "Alleged Wife" Of Party Summoned: Bombay High Court

Case Title : Shamrao Piraji Kadam v Prakash Shivaji Chavan and ors

Citation: 2022 LiveLaw (Bom) 198

The Bombay High Court stated yesterday regarding service of summons that the suit summons was never served on the Petitioner as it was accepted by Respondent No. 3 falsely claiming to be his wife. There was want of knowledge on the part of the Petitioner about the suit proceedings as well as the ex parte decree; consequently the court condoned the delay in filing First Appeal before the Appellate Court.