Bombay High Court Weekly Roundup: March 7 To March 13, 2022

Anurag s/o Jamnashankar Pandey Vs. State of Maharashtra

Savina R Crasto vs Union Of India

Pigments & Allieds Vs. Carboline (India) Pvt. Ltd. and Anr.

Intezar Hussain Sayed vs Zee Studios & Ors

Shankar Bhimrao Kadam & Ors vs Tata Motors Limited

Basant Singh and Ors. v. Autar Kaur and Ors.

Janak Vyas vs State of Maharashtra

M/s. Royale Urbanspace and Ors. v. State of Maharashtra and Anr.

Rajendra Goyal alias Raju Goyal vs PIO and connected matter

Ingram Micro INC. vs The Income Tax Officer, (International Taxation)

ROUND UP

1. Discretion Of Any Authority Cannot Be An Arbitrary Or Unregulated; To Be Exercised Fairly: Bombay High Court

Case Title: Sanjay v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 69

The Bombay High Court recently considered the workings of the doctrine of pleasure, whereby authorities have a right to act as per their discretion. A bench of Justices S.V. Gangapurwala and S.G. Dige regarded that the doctrine of pleasure does not unable an authority to be arbitrary.

The petitioner was appointed as a part time Chairman of Aurangabad Housing and Development Board by the State Government under the Maharashtra Housing and Area Development Act, 1976, which was later cancelled. Aggrieved by this, the Petitioner submitted that as per section 7 of the said Act, his term was for three years and that powers of the State Government to remove President, Vice-President or any non-official member from his office prior to the stipulated period of three years were not unfettered and the State Government, while exercising its powers, had to notify the reasons.

The bench observed that no reason had been set out by the State Government for removal of petitioner, when the admitted position was that his removal was on account of Doctrine of Pleasure.

2. Principal Had No Actual Control Over Children, Can't Be Prosecuted For Cruelty Under JJ Act If Teacher Beat Them Up: Bombay High Court

Case Title: Anurag s/o Jamnashankar Pandey Vs. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 70

The headmaster of a school cannot be prosecuted for cruelty under the Juvenile Justice Act (JJ Act) for a teacher's actions merely because he heads the institution in the absence of specific allegations of assault, connivance or wilful neglect on his part, the Bombay High Court's Nagpur bench held.

Justice Avinash Gharote allowed the headmaster's writ petition and discharged him of offences under Section 75 of the JJ Act (punishment for cruelty to child).

The court rejected the prosecution's contention that the headmaster was liable because he was the head of the institution and thus had overall control over the children wherein a dance teacher had beaten a child with an iron rod during practice, causing injuries.

3. Bombay Asks Cab Aggregators Like Ola & Uber To Apply For Licenses Under New Motor Vehicle Rules By March 16

Case Title: Savina R Crasto vs Union Of India

Citation: 2022 LiveLaw (Bom) 71

In a sign of accountability for all cab aggregators in Maharashtra like Uber India and Ola, the Bombay High Court directed them to apply for new licences from the State Government by March 16, 2022, based on rules framed by the Central Government under the Motor Vehicles Act 1988.

The Central Government's rules – Motor Vehicles Aggregators Guidelines 2020 – will be applicable till the State's rules come into effect based on a 2019 amendment to the MV Act.

"If rejected (application and appeal), such applying aggregator shall not be permitted to carry on further activities in the state of Maharashtra," a division bench led by Chief Justice Dipankar Datta observed.

4. Once Parties Acknowledge Existence Of Arbitration Clause, Court Can Appoint Arbitrator Even If Stamp Duty Is Insufficiently Paid: Bombay High Court

Case Title: Pigments & Allieds Vs. Carboline (India) Pvt. Ltd. and Anr.

Citation: 2022 LiveLaw (Bom) 72

The Bombay High Court recently observed that once the parties have acknowledged that an arbitration clause was embodied in the substantive contract, insufficiency of stamps cannot prevent the court from disposing an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrators.

Justice AK Menon observed, "Arbitration is seen as a speedy remedy but if applicants and respondents who may have counter-claims, have to await the fate of adjudication of documents for stamping and conclusion of the statutory challenge, the purpose of arbitration may be defeated. In my view, once parties are ad-idem on the fact that they have signed the writing containing an arbitration clause, the parties having acknowledged that an arbitration clause was embodied in the substantive contract, cannot prevent the court from disposing an application under Section 11 and the High Court, in my view, need not await the decision of the claimant in the case at hand as to whether or not to pay stamp-duty, as adjudicated. If this is not to be so, a large number of arbitration proceedings will be held up right at the inception, which is not desirable."

5. Bombay High Court Dismisses Plea Against Movie 'The Kashmir Files'

Case Title: Intezar Hussain Sayed vs Zee Studios & Ors

Citation: 2022 LiveLaw (Bom) 73

The Bombay High Court dismissed a PIL seeking to stall the release of movie "The Kashmir Files" on the alleged grounds of hurting religious sentiments of the Muslim community and inflaming members of the Hindu Community with possibility of triggering communal violence. The film directed by Vivek Agnihotri features well-known actors like Anupam Kher and Mithun Chakraborty.

The bench led by Chief Justice Dipankar Datta noted that the Petitioner had not challenged the censor certificate issued by the Central Board of Film Certification (CBFC). The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest.

6. Bombay High Court Holds Tata Motors Liable For Unfair Labour Practices, Directs To Compensate 52 Employees

Case Title: Shankar Bhimrao Kadam & Ors vs Tata Motors Limited

Citation: 2022 LiveLaw (Bom) 74

In a dispute that spanned over 17 years, the Bombay High Court held Tata Motors liable for unfair labour practices under the Industrial Disputes Act 1947 for hiring hundreds of workmen in its manufacturing unit as temporaries to deprive them of the status and privilege of permanent workmen.

Justice Ravindra Ghuge directed the automobile major to pay compensation to the 52 petitioners and set aside the Labour Court's orders. The bench observed that the company had a monitoring department to ensure temporary workers were disengaged before they completed the mandatory days of continuous employment.

"I find that the respondent-management has systematically prevented these temporaries from completing 240 days in continuous employment and had foisted involuntary unemployment on these temporaries before they could complete 240 days only to paint an imperfect picture that the work had come to an end and, therefore, these temporaries were disengaged by efflux of time, which is an exception to retrenchment u/s 2(oo) (bb)," the bench observed.

7. Order XXVI Rule 13 & 14 CPC | Can't Lay Down Hard & Fast Rules For Partition Of Joint Family Properties: Bombay High Court

Case Title: Basant Singh and Ors. v. Autar Kaur and Ors.

Citation: 2022 LiveLaw (Bom) 75

The Bombay High Court reiterated that the supervisory, discretionary powers conferred upon it under Article 227 of the Constitution is to ensure proper administration of justice and the same cannot be exercised merely to correct an error on facts.

"The powers of this Court under Article 227 of the Constitution are wide and the main object of it is to keep strict administration and judicial control on the administration of justice. Just because a party seeks to challenge an order of a subordinate Court merely due to some insignificant errors on facts, the discretionary powers cannot be exercised, " Justice Prithiviraj K Chavan observed.

The observation was made while dealing with a petition under Article 227, challenging the order of a single judge which had rejected the report submitted by the Court Commissioner in a case relating to partition of suit property.

8. Unfortunate That In Maharashtra, Two Highest Constitutional Functionaries Don't Trust Each Other: Bombay High Court

Case Title: Janak Vyas vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 76

The Bombay High Court expressed anguish that two highest constitutional functionaries in Maharashtra, the Chief Minister Uddhav Thackeray and Governor Bhagat Singh Koshyari "do not trust each other."

"The unfortunate part in Maharashtra is this that two highest Constitutional functionaries do not trust each other. You both please sit together and sort this out between yourselves. Here, the Governor and the Chief Minister, we all think, are not on the same page. But who is suffering in all of this?"

The bench of Chief Justice Dipankar Datta and Justice MS Karnik was referring to the Governor's inaction on the nomination of 12 members to the Maharashtra Legislative Council over eight months after the High Court's judgement.

Two PILs challenged certain amendments to the procedure for election of the speaker in the Maharashtra Legislative Assembly. The court lambasted the petitioners before dismissing petitions.

9. Excavation Of Ordinary Earth For Construction Of Building Purposes Would Not Attract Levy Of Royalty And Penalty Under The Provisions Of The MLR Code, 1966: Bombay High Court

Case Title: M/s. Royale Urbanspace and Ors. v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 77

The Bombay High Court bench of Justices SJ Kathawalla and Milind Jadhav, noted that the Supreme Court had enunciated in clear and unambiguous terms that excavation of ordinary earth for construction of building purposes/development would not attract levy of royalty and penalty under the provisions of Section 48(7) of the Maharashtra Land Revenue Code, 1966 ("MLR Code, 1966"), especially when the excavated earth has been used for levelling and development on the same plot.

The Petitioners challenged two show cause notices, both dated 29.01.2021, hearing notice dated 30.06.2021, two final notices, both dated 23.08.2021 issued by the Tahasildar, Shahapur, demanding payment of royalty and penalty of Rs.1,07,12,000/- and Rs. 5,71,35,104/- and order dated 21.10.2021 calling upon the Petitioners to deposit an amount of Rs.1,09,18,000/- under the provisions of Section 48(7) of the MLR Code, 1966. The Respondent No.2 has issued the impugned notices and passed the impugned order against the Petitioners for extraction of minor minerals unauthorisedly.

10. Social Worker Not Exempt From Exceptions U/S 8 RTI Act, Must Demonstrate Bona Fides In Larger Public Interest: Bombay High Court

Case Title: Rajendra Goyal alias Raju Goyal vs PIO and connected matter

Citation: 2022 LiveLaw (Bom) 78

Claims of being a "social activist" are not enough to get information under the RTI Act, the application must show details sought are bona fide in larger public interest, and without causing "unwarranted invasion of privacy of the individual" under Section 8(1)(j) of the RTI Act, the Bombay High Court has held.

"The logic seems to be this: since Goyal (appellant) is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable," the court said.

A division bench of Justices Gautam Patel and Madhav Jamdar, in a judgement on March 3, observed that all that the petition filed by one Rajendra Goyal seeking implementation of the State Information Commissioner's order said was that Goyal was a "social activist." The bench, however, found that one of the paragraphs somewhere inside revealed that he was a developer – in the real estate business.

11. Bombay High Court Upholds Single Judge Order Permitting 'Phone Pe' To File Fresh Trademark Suit Claiming Exclusivity On 'Pe' Suffix

Citation: 2022 LiveLaw (Bom) 79

The Bombay High Court has allowed PhonePe to file a fresh suit claiming trademark infringement against Resilient Innovations, the owners of PostPe.

Earlier a single judge of the High Court had granted leave to PhonePe to withdraw its suit and file a fresh one, which was challenged before a division bench, which has refused to interfere with the single judge's order.

A division bench of Justices SJ Kathawalla and Milind Jadhav, on Friday, dismissed as not maintainable an appeal by Resilient Innovations, which owns the rival brand PostPe. The court, however, refrained from making observations on the merits of the case.

12. Holding Company Not Liable To Deduct TDS On The Share Purchase Transaction By Its Subsidiary: Bombay High Court

Case Title: Ingram Micro INC. vs The Income Tax Officer, (International Taxation)

Citation: 2022 LiveLaw (Bom) 80

The Bombay High Court held that even if a holding company was considered as an ultimate beneficiary of a share purchase transaction undertaken by its subsidiary company, it would still not be liable to deduct tax at source under section 195 of the Income Tax Act, 1961 if it did not make any payment to a non-resident under the transaction.

The bench, consisting of Justices KR Shriram and NJ Jamadar, ruled that the liability to deduct TDS under Section 195 of the Act is applicable only to a person who has paid any sum, or is responsible for paying any sum, to a non-resident.

The High Court observed that the conclusions drawn by the Assessing Officer (AO) regarding Ingram Micro Inc.'s liability to deduct TDS by placing reliance on the Annual Reports of the Ingram Group, which had mentioned the factum of Ingram Group's acquisition of Techpac Holdings, was misplaced. The High Court held that the comments mentioned in the said Annual Reports were with respect to the Ingram Group as a whole and were not restricted to the activity of the petitioner Ingram Micro Inc.