Bombay High Court Weekly Round-Up: April 11 To April 17, 2022

Shailendrasingh Shivmurtisingh Thakur and Ors. v. The State of Maharashtra, with connected matters

Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors

Dilip s/o. Bhavanji Shah versus Errol Moraes

Ramesh and ors v Smt. Prakashkaur and ors

Jeetendra Navlani vs State of Maharashtra

Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd

Wadhwa Group Holdings Pvt. Ltd. v. Homi Pheroze Ghandy and Anr.

Aparna Abhitabh Chatterjee v Union of India

ABC v. UOI and others

Rajneesh Jaiswal vs Dil Raju & Ors

Ganesh Nivrutti Ghadge v State of Maharashtra and ors

Sushama Arun Patil v The State of Maharashtra and ors

The Commissioner of Customs II versus Axiom Cordages Ltd

J M Financial and Investment Consultancy Services Private Limited Versus Assistant Commissioner of Income Tax

Eknath Genu Pawar & ors V Dattu Santram Haral & ors

ROUND-UP

1. "Deserves No Sympathy": Bombay High Court Enhances Punishment, Sentences Watchman To Death For Employer's Dacoity & Murder

Case Title: Shailendrasingh Shivmurtisingh Thakur and Ors. v. The State of Maharashtra, with connected matters

Citation: 2022 LiveLaw (Bom) 128

The Bombay High Court awarded the death penalty to a watchman found guilty of dacoity and the "calculated and cold blooded" murder of his employers, a plan he executed with two of his friends and three former employees of the couple.

The bench upheld the life imprisonment awarded to five accused but enhanced watchman Shiv Kumar Saket's punishment on the State's appeal as he had "betrayed the trust of his employer."

2. Occupier Of Flat Entitled To Transit Rent For Period Of Dispossession During Redevelopment : Bombay High Court

Case Title: Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors

Citation: 2022 LiveLaw (Bom) 129

The person in possession of a tenement being re-developed will be entitled to transit rent in the absence of a court order stating otherwise, even if he or she doesn't own the premises, the Bombay High Court has held.

In the present case, the HC also asked the developer to put the occupant in possession of the redeveloped property if his dispute with the flat owner is not finally decided by then.

3. Court Does Not Have Adjudicatory Powers Under Section 27 Of The A&C Act: Bombay High Court

Case Title: Dilip s/o. Bhavanji Shah versus Errol Moraes

Citation: 2022 LiveLaw (Bom) 130

The Bombay High Court ruled that the Court does not have the jurisdiction under Section 27 of the Arbitration and Conciliation Act, 1996 (A&C Act) to consider the legality of the reasons set out by the arbitral tribunal in its order permitting the examination of a witness.

The Single Bench ruled that once the arbitral tribunal had formed a prima facie opinion that a particular witness is required to be examined by a party in the arbitral proceedings, the reasons laid down by the tribunal in its order cannot be revisited and scrutinized by the Court, since proceeding under Section 27 of the A&C Act are not in the nature of an appeal and the Court does not have any adjudicatory powers under Section 27.

The court observed, "The fact remains that as respondent no.3 (occupier) is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society… The party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship."

4. Provision For Seeking Adjournment Under Order XVII Rule 1 CPC Is Rule Of Procedure, Directory In Nature: Bombay High Court

Case Title: Ramesh and ors v Smt. Prakashkaur and ors

Citation: 2022 LiveLaw (Bom) 131

The Bombay High court adjudicated how Rules of procedure (in this case provision of seeking adjournments under Order XVII Rule 1 CPC) are indeed "handmaids of justice" and are meant to advance ends of justice and not to thwart or obstruct the same.

Accordingly, the court agreed to grant more opportunities for evidence to a recalcitrant Petitioner at his own responsibility, on payment of heavy costs of Rs. 1 lakh.

5. FIR For Obstructing Public Servant Against Param Bir's Alleged Aide Jeetendra Navlani Quashed By Bombay High Court

Case Title: Jeetendra Navlani vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 132

The Bombay HC quashed an FIR against one Jeetendra Navlani who was alleged to be connected to the former Mumbai Police Commissioner Param Bir Singh by the investigating officer of the case, Anup Dange. Navlani is a developer and owner of a restaurant & bar in South Mumbai, was booked under Section 186 IPC for causing obstruction to a public servant from performing his duty in November 2019.

The bench quashed the FIR on the grounds of contradictory witness statements. Moreover, that after the incident the police officials had not brought the Applicant to the police station nor effected arrest and a notice was issued after two days of incident to the Applicant calling upon him to give his statement, as such Applicant bonafidely believed that he is treated as a witness in the incident.

6. Tax Invoices Containing Reference To Arbitration, Does Not Constitute An Arbitration Agreement: Bombay High Court

Case Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd

Citation: 2022 LiveLaw (Bom) 133

The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties.

The Single Bench held that unilateral invoices cannot bring about an arbitration agreement between the parties.

7. Court Can Appoint An Arbitrator During The Pendency Of An Appeal Against An Award, Set Aside On Reasons Other Than Merit : Bombay High Court

Case Title: Wadhwa Group Holdings Pvt. Ltd. v. Homi Pheroze Ghandy and Anr.

Citation: 2022 LiveLaw (Bom) 134

The Bombay High Court held that when an award is set aside for other reasons and not on merit, the parties are well within their rights to initiate fresh arbitration in respect of the same claims and pendency of an appeal against such an order is not a ground to refuse the appointment.

The Single Bench of Justice A.K. Menon has further held that an objection as to the claims being barred by Res Judicata since an appeal is pending before the Court is outside the limited scope of judicial examination permissible under S. 11 of the A & C Act. The Court held that invocation of the arbitration cannot be subjected to the fate of the appeal.

8. S.29A Of Consumer Protection Act, 1986 Valid; Consumer Forums Can Pass Orders Without President: Bombay High Court

Case Title : Aparna Abhitabh Chatterjee v Union of India

Citation: 2022 LiveLaw (Bom) 136

The Bombay High Court recently regarded a challenge to the constitutional validity of Section 29A of the Consumer Protection Act, 1986 – whether the exercise of powers by the District Consumer Forum without the President being its party is illegal? A bench answered the question in the negative.

In light of the settled presumption of constitutionality in favour of Legislation unless the contrary is shown, the bench concluded that there is no merit in the challenge to the constitutional validity of Section 29A of the Consumer Protection Act,1986.

9. Right To Be Forgotten | Man Facing Difficulties In Getting Job Due To An Order By Which He Was Acquitted: Bombay HC Orders Its Removal From Court Website

Case title: ABC v. UOI and others

Case Citation: 2022 LiveLaw (Bom) 137

The Bombay High Court ordered the removal of an acquittal order from the Court's website on a plea moved by a person/accused who was facing difficulties in getting job due to the acquittal order passed in his favour.

Essentially, he had moved to the Court arguing that even though the order was one of acquittal, still it was descriptive, and it had the potential to put a bias in the minds of his prospective employers, customers, bankers & investors.

10. Bombay High Court Refuses To Stay Release Of Shahid Kapoor Starrer "Jersey"

Case Title:  Rajneesh Jaiswal vs Dil Raju & Ors.

Citation: 2022 LiveLaw (Bom) 138

The Bombay High Court cited the delay on the petitioner's part in approaching the court while refusing interim relief. The court observed that "in the event prejudice is caused to the Defendant by delay of the Plaintiff in seeking ad-interim relief, Courts will not entertain such application and / or grant ad-interim relief."

11. Right to Fair Compensation Act | 'Land' Includes Things Attached, Benefits Arising Out Of It: Bombay High Court

Case Title : Ganesh Nivrutti Ghadge v State of Maharashtra and ors.

Citation: LiveLaw2022 (Bom) 139

The Bombay High Court dealt with a petition seeking directions to pay proper compensation in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

A bench of Justices S.V. Gangapurwala and Vinay Joshi noted that under the Act, 'land' includes everything that grows on it. It said,

"the term 'land' defined under Section 3(p) of the Act of 2013 includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Thus there is no gainsaying in contending that the factors which are not allegedly considered cannot be agitated before statutory authority."

12. Minister Can't Interfere In Zilla Parishad Administration and Order Teacher's Transfer Merely Because Complaint Was Also Made To Him: Bombay High Court

Case Title :Smt. Sushama Arun Patil v The State of Maharashtra and ors

Citation: 2022 LiveLaw (Bom) 140

A Rural Development Minister doesn't have the power to interfere with the affairs of the Zilla Parishad by cancelling the transfers orders of teachers merely because a teacher complained to him, the Bombay High Court ruled.

The court observed that the Minister's order directing the Zilla Parishad CEO to cancel the transfer of certain teachers was without jurisdiction, therefore the CEO's subsequent order complying with the Minister's direction would be bad-in-law.

13. Appeal Against CESTAT Order, On Classification Of Goods, And Determination Of Customs Duty Lies Before The Supreme Court: Bombay High Court

Case Title: The Commissioner of Customs II versus Axiom Cordages Ltd

Citation: LiveLaw2022 (Bom) 141

The Bombay High Court ruled than an appeal from an order passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), involving the question with respect to classification of goods under the Customs Act, 1962, would lie before the Supreme Court under Section 130E of the Customs Act, since it is primarily related to determination of the rate of customs duty applicable.

The Bench held that to determine whether there was a short levy of customs duty under Section 28 of the Customs Act, 1962, the revenue department has to decide the classification of goods in order to ascertain the rate of customs duty to be levied, therefore an appeal involving issues relating to Section 28 of the Customs Act was maintainable only before the Supreme Court.

14. Only PCIT Can Sanction Reassessment Notice After Expiry Of 4 Years, Not ACIT: Bombay High Court

Case Title: J M Financial and Investment Consultancy Services Private Limited Versus Assistant Commissioner of Income Tax

Citation: LiveLaw (Bom) 142

The Bombay High Court held that after four years of expiry from the end of the relevant assessment year, only the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner (PCIT) can accord the approval to the reassessment notice and not the Additional Commissioner of Income Tax (ACIT).

The court said, "even if for a moment we agree with the view expressed by the Principal Commissioner of Income Tax, it still applies to only cases where the limitation was expiring on March 31st, 2020. In the case at hand, the assessment year is 2015-2016 and, therefore, the six years limitation will expire only on 31st March 2022. Certainly, therefore, the Relaxation Act provisions may not be applicable. In any event, the time to issue notice may have been extended, but that would not amount to amending the provisions of Section 151 of the Act."

15. Jurisdiction U/S 100 CPC Is So Limited That Even Wrong Or Grossly Inexcusable Finding Of Fact Cannot Be Interfered With: Bombay High Court

Case Title : Eknath Genu Pawar & ors V Dattu Santram Haral & ors

Citation: 2022 LiveLaw(Bom) 143

The Bombay High Court adjudicated a challenge to a lower court order seeking re-appreciation of evidence. The single judge Mangesh S. Patil held that jurisdiction under Section 100 of the Code of Civil Procedure is so limited that even a wrong or grossly inexcusable finding of fact cannot be interfered with and hence refused to do so.

The case arose as Eknath Genu Pawar obtained a declaration from the trial court of his being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on 30.06.1956. Lower appellate court quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.