Bombay High Court Weekly Round-Up: February 13 To February 19, 2023

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) 84

Ekta Welfare Society v. State of Maharashtra & Ors 2023 LiveLaw (Bom) 93

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

Reports/Judgments

“Can’t Be Party To A Widow Being Thrown Out Of Her House After 50 Years, Where Is The Justice?”: Bombay High Court

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.

Vehicular Toll Is Tax And Not Mere Contractual Debt Between Collection Company And Civic Body: Bombay High Court

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.

Bombay High Court Dismisses Plea Seeking Uniform Rules & Safety Measures For Ganpati Utsav Celebrations

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."

Scale Of Human Displacement Beyond Imagination, Labelling People As ‘Encroachers’ & Deploying Bulldozers No Solution: Bombay High Court

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."

Defence Of Alibi Can Be Raised At The Stage Of Framing Charge, No Rule That It Can Be Considered Only During Defence Evidence: Bombay HC

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.

Arbitrator Who Accepted Brief Of Party’s Lawyer In An Unrelated Matter, No Clash of Interest Involved: Bombay High Court

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.

CBDT Circular Disallowing Expenses Incurred On Granting Freebies To Doctors, Not Applicable To A/Y 2008-09: Bombay High Court

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 10^th 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.

Objectionable To Morality And Human Rights That A Mother Sold Her Daughter: Bombay HC While Granting Bail To Woman Who “Purchased” The Child

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.

Bombay High Court Directs Police To Not Disclose Identity Of Rape Victims In Chargesheets, Says Photos Be Filed Only In Sealed Cover

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.

Active PAN In Name Of Amalgamating Company, Would Not Justify Reassessment Proceedings Against It: Bombay High Court

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.

Minority Institution Cannot Reinstate Retired Employee Who Retained Full Retiral Benefits: Bombay High Court

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.

No Jurisdictional Error By Arbitrator In Allowing Consolidated SoC Containing Specific Claims Under Different Contracts: Bombay High Court

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.

Eligibility Of Researcher For Any Post Determined By Acceptance Of Research Paper For Publication Rather Than Actual Publication: Bombay High Court

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.

Teacher Forcibly Ties 'Mangalsutra' To Student, Rapes Her: Bombay High Court Upholds POCSO Conviction

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.

GST Act Can’t Be Interpreted To Deny Right To Carry Trade And Commerce By Citizens: Bombay High Court

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.

Copper Chimney's Right To Operate From Kala Ghoda Outlet Ended With Expiry of Contract, Can't Invoke Force Majeure: Bombay High Court

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.

Other Developments

Police Security Not A Right: Eknath Shinde Led Maharashtra Govt Tells Bombay HC On Reduced Security For Shiv Sena (UBT) MP Rajan Vichare

MP Rajan Vichare from Uddhav Balasaheb Thackeray (UBT) Shiv Sena's security was reduced to just one constable "after consideration at all levels" and an approval from the Thane police commissioner, the Eknath Shinde led Maharashtra Government told the Bombay High Court on Tuesday.

"A person is neither entitled to a Police Protection as a matter of right nor can be granted as a matter of course," the affidavit said, adding "An inquiry is conducted and after determining the extent of such threat and the nature thereof the extent of Police Protection and its duration is decided."

The State denied allegations that Vichare's security had been deliberately reduced to cause harm to him and for his family members to be put in danger as being "incorrect" and "without any basis."

A division bench of Justices AS Gadkari and PD Naik was hearing Vichare's petition in which he alleged that the government was providing double police security to the Private Personal Assistants', party workers and some people who are not even holding any position but are close to CM Eknath Shinde at the cost of state exchequer, but the security of those aligning with UBT Shiv Sena has been reduced.

Explain 'Sick Person' Exempted From Twin Bail Conditions Under PMLA: Bombay High Court On Nawab Malik's Plea In Money Laundering Case

The Bombay High Court on sought to know who could be called a "sick" person under the Prevention of Money Laundering Act and if NCP leader Nawab Malik fell under that category for an expeditious bail hearing.

"I have some questions on this as many matters are now coming up where the person (accused) says grant me bail as I am sick. So I want to know who is a sick person. I want you to argue on …. who will be a sick person," Justice MS Karnik said.

He added that if the counsels weren't able to satisfy him that Malik was 'sick' then he would have to wait in queue for the bail application to be heard on merits. "I don't want anyone to say anything," Justice Karnik said.

Bombay High Court Stays Notices For Demolition Within Precincts of Vishalgad Fort, Petitioners Allege Religious Discrimination

The Bombay High Court stayed demolition notices issued to over 100 tenements around the famous Vishalgad Fort in Kolhapur till March 10. Justice Gautam Patel, who heads a division bench asked the state if there is a policy to deal with old settlements within a protected monument.

Further, the state would have to justify why some of the tenements are regularized, the court stated.

The matter was adjourned to March 10.

Subramanian Swamy Challenges Pandharpur Temples Act In Bombay High Court, Says Govt Can't Permanently Takeover Hindu Temples

Former Rajya Sabha MP Subramanian Swamy approached the Bombay High Court in a PIL challenging the Pandharpur Temples Act, 1973, which empowers the Maharashtra government to take over the administration of the temples at Pandharpur.

Swamy has argued that the power to “permanently” takeover the administration and control of religious and non-religious activities of the temples and vest the same in the officers of the government “indefinitely” on mere allegations of mismanagement violates his fundamental rights and those of “Hindu population” under Articles 13, 14, 25, 26, 31-A of the Constitution of India.

He therefore seeks for the Act to be struck down and a committee of priests, representatives of devotees and warkaris to be constituted for proper management of the temple.

Patra Chawl Case: Bombay High Court Questions ED For Challenging Sanjay Raut's Bail Without Arresting Main Accused

The Bombay High Court questioned the Directorate of Enforcement for not arresting the prime accused in the Patra Chawl Case but seeking to cancel MP Sanjay Raut's bail.

Justice N. R. Borkar was hearing ED’s application seeking cancellation of bail granted to Sanjay Raut and aide Pravin Raut.

Additional Solicitor General Anil Singh responded that main two accused not being arrested cannot be a ground to grant bail to Sanjay Raut and Pravin Raut. He further submitted that the ED’s application is in nature of an appeal. It is not the ED’s case that bail conditions have been breached, he said. Rather, the ED is seeking cancellation because the bail order is perverse and bail shouldn’t have been granted in the first place.