Bombay High Court Weekly Round-Up: January 29 To February 5, 2023

Gajanan v. Surekha 2023 LiveLaw (Bom) 61

Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria 2023 LiveLaw (Bom) 62

Uttam Anna Lande v. State of Maharashtra 2023 LiveLaw (Bom) 63

Hirabai Dattatray Mankar v. Dodke Associates through its Partner 2023 LiveLaw (Bom) 64

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

X v. Y 2023 LiveLaw (Bom) 72

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

Reports/Judgments

Bombay High Court Upholds Grant Of Maintenance To Woman Who Had Accepted Alimony Under 'Customary Divorce'

Case Title: Gajanan v. Surekha

Citation: 2023 LiveLaw (Bom) 61

Observing that a person's approaching the civil court for divorce itself shows that customary divorce does not exist in his caste, the Bombay High Court upheld an order granting maintenance to a woman under the Protection of Women from Domestic Violence Act, 2005 (DV Act).

Justice S. G. Mehare, in the husband’s challenge to the award, held that:

“For claiming any customary right, the parties claiming such right are bound to prove that the customs of their caste or race still exist and the community at large is regularly observing such customs. Since the applicant approached the Civil Court for divorce, it can safely be held that the customary divorce was not in existence in their caste. Therefore, the respondent cannot claim that after the customary divorce, the domestic relationship ceased, and the applicant is not entitled to the reliefs under D.V. Act.”

Opportunity To Examine Vital Witness Cannot Be Denied Only Due To Failure To Show Reason For Omitting Name In Witness List: Bombay High Court

Case Title: Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria

Citation: 2023 LiveLaw (Bom) 62

The Bombay High Court held that failure to show reason for not including witness names in the witness list under Order XVI Rule 1(1) of CPC alone cannot be a reason to disallow the plaintiff from examining witnesses who are vital for determining the dispute.

Justice Sandeep V. Marne, while upholding trial court’s order allowing the plaintiff to examine two witnesses held, “Court would not deny them the opportunity by showing technical rules of procedure, drafted for advancing the cause of justice.”

Not Extinguishing Fire Shows Knowledge And Intention To Cause Death: Bombay High Court Upholds Man’s Murder Conviction For Killing Wife

Case Title: Uttam Anna Lande v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 63

The Bombay High Court upheld the murder conviction of a man observing that he did not try to extinguish the fire showing that he had the intention to murder his wife.

A division bench of Justice Nitin W. Sambre and Justice R. N. Laddha held –

“the act of the accused of pouring the kerosene oil on the person of the deceased, setting her ablaze and not extinguishing the fire would speak entirely against him and demonstrates the intention and knowledge on the part of the Appellant. The deceased was the wife of the Appellant and was alone in the house. The Appellant had taken undue advantage of the situation and acted cruelly. Even if the incident in question was not premeditated and sudden, the manner of retaliation is disproportionate”.

Prayers For Partition & Separate Possession Can't Be Granted In Execution Proceedings: Bombay High Court

Case Title: Hirabai Dattatray Mankar v. Dodke Associates through its Partner

Citation: 2023 LiveLaw (Bom) 64

The Bombay High Court refused to reopen closed execution proceedings for petitioners who had not pursued their objections for 14 years and challenged the executing court's order two years after it was passed. Justice Sandeep V. Marne said that the prayers of the petitioners for partition and separate possession in the objection applications are of the nature of a fresh suit and cannot be granted in execution proceedings. Such prayers can always be sought by the Petitioners by filing a separate suit.

No Locus Standi: Bombay High Court Imposes ₹10K Cost On Nasik Resident For Challenging Permission For Opening Of Country Liquor Bar In Residential Area

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.

Cannot Direct State To Consider Degree Holders For Junior Engineer Posts When Recruitment Rules Say Only Diploma Holders Eligible: Bombay High Court

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.

Domestic Violence Case Can Be Quashed By High Court Under Section 482 CrPC Even After Conviction: Bombay High Court

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.

Instakart Not Dealer, Agent Or Importer Under Maharashtra Municipal Corporation Act; Not Liable To Pay Local Body Tax: Bombay High Court

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.

Can't Prevent Bidder From Participating In Tender Process On Ground Of Pendency Of Proposal For Blacklisting: Bombay High Court

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.

Body Building Competition A Secular, Neutral Activity; Won't Aggravate Differences Between Shiv Sena Factions: Bombay High Court

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.

'Safety & Hygiene For Schoolgirls Paramount': Bombay HC On Startup's Plea To Relax Tender Conditions For Sanitary Napkin Disposal Machines

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.

Bombay High Court Allows Man's Plea For Transfer Of Domestic Violence Proceedings To Family Court Where His Divorce Case Is Pending

Case Title: X v. Y

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.

Physical Force Used Only To 'Correct' Schoolchild Is Not An Offence: Bombay High Court Acquits Teacher In Corporal Punishment Case

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 schoolteacher, 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; Says It Is For Govt To Consider

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.

Non-Creamy Layer Certificate Dispute: Bombay High Court Directs Mumbai University To Grant Admission To OBC Candidate In LLM Course

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.