Nominal Index [Citations 390 – 406]

1. Sunita Manohar Gajbhiye v. Union of India 2022 LiveLaw (Bom) 390

2. Yash and Ors. v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 391

3. Ashok Babarao Patil v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 392

4. ABC v. State of Maharashtra 2022 LiveLaw (Bom) 393

5. Jyoti Jagtap v. National Investigating Agency and Anr. 2022 LiveLaw (Bom) 394

6. Chandrakant Narayan Salvi v. Chandrakant Krushna Kumbhar and Ors. 2022 LiveLaw (Bom) 395

7. Bharat Bhusan v. The Chairman, Joint Seat Allocation Authority and Ors. with connected matter 2022 LiveLaw (Bom) 396

8. Yash Developers v. Harihar Krupa Co-operative Housing Society Ltd and Ors. 2022 LiveLaw (Bom) 397

9. Mandar Pramod Vichare v. Thane Municipal Corporation 2022 LiveLaw (Bom) 398

10. Dashrath Arjun Kamble v. State of Maharashtra 2022 LiveLaw (Bom) 399

11. Mahindra & Mahindra Ltd. v. Union of India & Ors. 2022 LiveLaw (Bom) 400

12. Ajay Ram Pandit v. State of Maharashtra 2022 LiveLaw (Bom) 401

13. Shivaji Nagar Rahivashi Co-operative Housing Society Limited and Anr. v. The State of Maharashtra and Anr. 2022 LiveLaw (Bom) 402

14. Abdul Rauf Mohammed Khaja v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 403

15. Nayana Premji Savala v. Union of India & Ors. 2022 LiveLaw (Bom) 404

16. Kewal Ashokbhai Vasoya v. Saurabhakti Goods Pvt. Ltd. 2022 LiveLaw (Bom) 405

17. Narendra S/o Chuhadram Sharma v. Union of India 2022 LiveLaw (Bom) 406

Reports/Judgments

1. Passenger Hit By Train While Crossing Railway Track In Absence Of Foot-Over Bridge Entitled To Compensation: Bombay High Court

Case Title: Sunita Manohar Gajbhiye v. Union of India

Citation: 2022 LiveLaw (Bom) 390

The Bombay High Court held that a passenger who is forced to cross the railway tracks due to absence of a foot over bridge and gets hit by a train cannot be called negligent and his dependents would be entitled to compensation under the Railways Act, 1989.

Justice Abhay Ahuja of the Nagpur Bench referred to the definition of 'passenger' under section 2(29) of the Railways Act and observed that the definition does not suggest that a passenger ceases to be a passenger after alighting from the train and meeting with an accident. The court noted that the Railways Act does not contemplate or recognise this concept.

2. Hazardous To Force Parties To Litigate Despite Compromise In Domestic Violence Cases U/S 498A IPC: Bombay High Court

Case Title: Yash and Ors. v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 391

The Bombay High Court observed that it would be "hazardous" to force a couple to litigate when they want to live happily while underscoring the importance of quashing domestic violence cases once parties arrive at a settlement, even though they are categorized as non-compoundable offence.

A bench of Justices Vibha Kankanwadi and Rajesh Patil noted that refusing to quash disputes despite amicable settlements, would be a "dis-service to the society for the protection of which the courts exits."

3. Order I Rule 10 CPC | Theory Of Dominus Litis Can't Be Overstretched To Exclude Necessary Parties From Suit: Bombay High Court (livelaw.in)

Case title: Ashok Babarao Patil v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 392

The Bombay High Court held that the trial court has "full power" under Order I Rule 10(2) of the Civil Procedure Code to add a party as defendant if necessary to decide a suit, even if the plaintiff does not choose to implead said party.

The court said that there is no doubt that the plaintiff is dominus litis of his suit and it is his choice to seek an injunction only against the person see chooses.

However, the powers of the trial court under Order I Rule 10(2) of the Civil Procedure Code are very wide and extensive. The court can implead any party at any stage even without an application if it thinks that their presence is necessary in order to effectively adjudicate the suit.

4. Marry Girlfriend You Abandoned Within A Year: Bombay High Court's Bail Condition For Rape Accused

Case title: ABC v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 393

The Bombay High court granted bail to a man accused of raping a woman and abandoning her, on the condition that he would marry her within a year.

Justice Bharti Dangre observed that the prosecutrix and accused were in a consensual relationship, and the man refused to marry her when she was six months pregnant. The accused submitted before the court that he and his family members were ready to solemnize the marriage and accept the paternity of the child. However, the court was told, the prosecutrix is now untraceable as she was charged with abandoning the child.

"In the above circumstances, I deem it appropriate to release the applicant on bail subject to compliance that if the victim girl is traced within a short while and say in a period of one year, he shall solemnize marriage with her, but he shall not be bound by the statement beyond one year," Justice Dangre held.

5. Kabir Kala Manch Incited Hatred By Ridiculing Phrases Acche Din, Demonetization In Plays At Elgar Parishad: Bombay HC In Jyoti Jagtap Bail Order

Case Title: Jyoti Jagtap v. National Investigating Agency and Anr.

Citation: 2022 LiveLaw (Bom) 394

The Bombay High Court while refusing bail to accused Jyoti Jagtap under UAPA, held that text ridiculing phrases like 'Ram Mandir' and 'Acche Din' aimed at the democratically elected government in Kabir Kala Manch's plays at the Elgar Parishad event in 2017 incited hatred & passion and indicate a larger conspiracy.

The bench of Justices AS Gadkari and Milind Jadhav also took exception to the mention of 'gomutra,' 'calling the PM an 'infant,' 'sanatan dharma,' 'atrocities of peshwas towards dalits' and 'atrocities of dalits in today's India' etc.

The court held NIA's contention regarding Jagtap having conspired, attempted, advocated and abated the commission of a terrorist act as prima facie true and said that her role will have to be seen as a part of conspiracy. Her name on the Elgar Parishad event invite, witness statements highlighted her active role in organising the event as also her association with active members of the banned CPI (Maoist).

6. Principle Of Res Judicata Applies To Children Claiming Property Through Parent Earlier Involved In Property Suit: Bombay High Court

Case Title: Chandrakant Narayan Salvi v. Chandrakant Krushna Kumbhar and Ors.

Citation: 2022 LiveLaw (Bom) 395

The Bombay High Court upheld trial court's decision to dismiss a partition suit citing the principle of res judicata. The plaintiff had claimed the properties through his mother; however, the issue had been decided in an earlier suit for same properties filed by his mother.

Justice S. M. Modak dismissed the second appeal stating that there was no need to interfere in the judgments of the lower courts as there was no perversity in those findings and no substantial question of law is made out in the appeal.

7. IIT Admissions: Bombay HC Asks Institutes To Consider Allotting Vacant Seats To Aspirants Who Cleared 1st Counselling Round But Couldn't Deposit Fees

Case Title: Bharat Bhusan v. The Chairman, Joint Seat Allocation Authority and Ors. with connected matter

Citation: 2022 LiveLaw (Bom) 396

In a plea by two candidates who were allotted seats in IITs in the first round of counselling but didn't pay fees due to technical glitch, the Bombay High Court asked the IITs to consider giving admission to the petitioners if seats are vacant in the 6th round.

The bench of Justice S.V. Gangapurwala and Justice R. N. Laddha considered that the petitioners are bright students who were allotted seats in the first rounds only due to their merits and stated –

"…if during the 6th round after all students have taken admission, if there are some seats vacant, the respondent No.2 may consider the petitioners for admission without impinging upon the rights of any other students."

8. Early Rehabilitation Primary Focus Under Slums Act, Unconscionable Delay In Redevelopment Ground To Remove Developer: Bombay HC

Case Title: Yash Developers v. Harihar Krupa Co-operative Housing Society Ltd and Ors.

Citation: 2022 LiveLaw (Bom) 397

The Bombay High Court held that a slum dweller's right to shelter under Article 21 cannot be nullified by unconscionable delays caused by a developer and is a ground for its removal under section 13(2) of the Slums Act.

The court dismissed a writ petition filed by Yash Developers challenging its removal by the Apex Grievance Redressal Committee in a project wherein transit rents were not paid to at least 199 slum dwellers and development hadn't commenced for over 18 years. The CEO of Slum Rehabilitation Authority (SRA) had refused to remove the developer despite innumerable complaints after which the slum dwellers society's grievances were redressed by AGRC.

A single judge bench of Justice GS Kulkarni ruled that the CEO – SRA or AGRC are duty bound to hold the interest and early rehabilitation of slum dwellers as paramount while considering an application to remove the developer u/s 13 of the Act.

9. Bombay High Court Dismisses Plea By Uddhav Faction Against 'Diwali Pahat' To Be Conducted By Shinde Faction

Case Title: Mandar Pramod Vichare v. Thane Municipal Corporation

Citation: 2022 LiveLaw (Bom) 398

The Bombay High Court dismissed a writ petition filed by a member of Uddhav Thackeray led faction challenging Thane Municipal Corporation's (TMC) permission to two members of CM Eknath Shinde faction to conduct Diwali Pahat, an annual musical event on the first day of Diwali.

The division bench of Justice RD Dhanuka and Justice Kamal Khata observed that the petitioners did not have necessary permissions, so the question of favouritism by TMC towards Eknath Shinde faction does not arise.

The court observed after going through the documents submitted by the parties and the arguments made that the petitioner did not fulfil the procedural requirements for obtaining the permission. Hence, the court said that that the TMC did not act in a mala fide manner while denying the permission to Uddhav Thackeray faction.

10. Police Should Recognize & Assist NGOs When Possible Instead Of Suspecting Them: Bombay High Court (livelaw.in)

Case Title: Dashrath Arjun Kamble v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 399

The Bombay High Court, while granting anticipatory bail to a man accused of fraudulently inducing people to donate to his NGO 'The Little Shine Foundation', observed that the police must uphold services of NGOs and assist them if possible.

Justice Bharti Dangre in her order observed, "it is also necessary for the Police Department, which is an important organ of the State Government, to recognize and uphold the services carried out by such NGOs and, if possible, to assist them in taking their ventures further, as there are several areas where the State machinery is unable to reach".

The court said that instead of "moving the needle of suspicion" to NGOs widely engaged in social service and helping weaker sections of the society, focus should be on the good deeds done by such NGOs.

11. Financial Benefits To Assessee Can't Be A Ground To Levy Interest Without A Statutory Provision: Bombay High Court

Case Title: Mahindra & Mahindra Ltd. v. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 400

The Bombay High Court ruled that penalty or interest on additional customs duty (CVD) and special additional duty of customs (SAD), or surcharge, which is not connected to the basic customs duty, cannot be imposed in the absence of an explicit substantive provision.

The Division Bench of Justices K.R. Shriram and A.S. Doctor observed that there was no substantive provision which obligated the assessee to pay interest or penalty on CVD or SAD, leviable under the Customs Tariff Act, 1975, or on the surcharge leviable under the Finance Act, 2000.

The Court held that when penalty is imposed by way of additional tax, the constitutional mandate requires a clear authority of law for imposition of the same. The bench added that the Settlement Commission cannot pass an order beyond the provisions of the Customs Act, 1962 and that the fact that the assessee derived financial benefits cannot be a ground to order payment of interest in the absence of any statutory provision.

12. IO Duty Bound To Subject Accused To Mental Examination Immediately After Arrest In Appropriate Cases: Bombay High Court

Case Title: Ajay Ram Pandit v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 401

The Bombay High Court recently observed that that the investigating officer has a duty to have the accused examined for mental issues immediately after apprehension, if he comes to know that there is some doubt about the soundness of mind of the accused.

A division bench of Justice A. S. Gadkari and Justice Milind N. Jadhav acquitted the appellant in a criminal appeal against his murder conviction observing that there was a reasonable doubt to the sanity of the appellant and the prosecution had failed to discharge the same. The court stated in its order, "once PW-7 – IO became aware of the fact after apprehending the Appellant that he was mentally retarded, it was his lawful duty to subject the Appellant to medical examination and place the evidence of such medical examination before the learned Trial Court".

13. Bombay High Court Dismisses Developers' Pleas Against Levy Of ₹800 Crores Aggregate Development Charges

Case Title: Shivaji Nagar Rahivashi Co-operative Housing Society Limited and Anr. v. The State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 402

The Bombay High Court has held that developers undertaking redevelopment on state owned land wouldn't be exempt from paying Development Charges under Sections 124A & F of the Maharashtra Regional and Town Planning (MRTP) Act.

Development charges are imposed to provide public amenities and for the improvement of the area. Only planning authorities undertaking such development would be exempt from such charges under the provision, the court held.

The order passed by Justices RD Dhanuka and Kamal Khata stated –

"In our view, Section 124F has to be read ejusdem generis with remaining part of Section 124F, vesting, control, possession as well as, in view of the fact that the exemption is only granted for the development undertaken by the Central or the State Government or Local Authorities and not by private parties. "

14. Govt Servant Turning Hostile In Criminal Trial Does Not Amount To Misconduct, May Be Unethical: Bombay High Court

Case Title: Abdul Rauf Mohammed Khaja v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 403

The Aurangabad bench of Bombay High Court held that a government servant turning hostile in a criminal trial may be unethical, but it does not amount to misconduct capable of being punished.

"Not standing by the statement given under Section 164 of Cr.P.C. during his testimony during trial could possibly be construed as an unethical act not expected of an ideal government servant .... The same, however, would not amount to misconduct capable of being subjected to punishment for ensuring discipline amongst the organization," said the court.

A division bench of Justices Mangesh S. Patil and Sandeep V. Marne further observed that the disciplinary authority is not an expert to gauge the factors leading to hostility of the witness and perjury can only be established by the Sessions Court and not in a disciplinary inquiry.

The court clarified that appointing authority can proceed against the employee departmentally for turning hostile in a criminal trial based on conviction under Section 191 IPC, without conducting any departmental inquiry.

15. Subleasing Of Containers; Deemed Sale, Service Tax Not Applicable; Bombay High Court

Case Title: Nayana Premji Savala v. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 404

The Bombay High Court has ruled that service tax would be applicable on transfer of goods only in cases where there is no "transfer of right to use" the said goods.

The bench of Justices K. R. Shriram and A. S. Doctor ruled that in view of Article 366(29A)(d) of the Constitution of India, transfer of right to use goods is a deemed sale, which is subject to Sales Tax/VAT. The Court added that Article 366 (29A) of the Constitution does not distinguish between an owner or a lessor of the goods. Thus, the bench ruled that lease of goods for valuable consideration on a "transfer of right to use" basis is a deemed sale, even if the transferor is not the owner of the said goods.

16. Appeals Against Ex-Parte Orders Should Not Be Encouraged, Defendant Can Always Approach Single Judge: Bombay High Court

Case Title: Kewal Ashokbhai Vasoya v. Saurabhakti Goods Pvt. Ltd.

Citation: 2022 LiveLaw (Bom) 405

The Bombay High Court in an order on a commercial appeal deprecated the practice of filing appeal against ex parte orders and stated that there are inbuilt safeguards in such orders which facilitate the defendants to approach the Single Judge, who passed the order, to vacate, modify or limit the same.

The division bench of Justice G. S. Patel and Justice Gauri Godse said that the appeal court cannot reverse findings of the single Judge based on material that was never placed before the single Judge barring the most exceptional circumstances.

The court also opined that a substantive application by the defendant under Order 39 Rule 4 of the CPC is not mandatory to have a without notice order set aside.

17. Theft can be considered a 'violent attack' under section 123 of the Railways Act if passenger got injured while attempting to catch phone snatcher: Bombay High Court

Case Title: Narendra S/o Chuhadram Sharma v. Union of India

Citation: 2022 LiveLaw (Bom) 406

The Bombay High Court held that theft can be considered a 'violent attack' under Section 123(c)(1)(ii) of the Railways Act, even if it's not specifically mentioned under the 'untoward incident' definition, in a situation where the passenger falls down and gets injured while running after a thief in a train.

The court said that any ordinary normal person's reaction would be to run towards the thief and try to recover the mobile if someone suddenly snatches the mobile in a train. If he gets injured while doing so it cannot be considered self-inflicted injury as there is no intention to harm oneself.

Other Developments

1. PIL In Bombay High Court Seeks CBI, ED Probe Into Ex-Maha CM Uddhav Thackeray's Wealth

Case Title: Gouri Abhay Bhide and Anr. v. Union of India and Anr.

A PIL has been filed in the Bombay High Court seeking a CBI and ED investigation into the wealth of ex-Maharashtra CM Uddhav Thackeray, his wife Rashmi and two sons Aditya and Tejas.

The petition raises questions regarding land plots given by the Maharashtra Government owned CIDCO for trust Prabodhan Prakashan (Owner and publishers of Saamna newspaper).

The plea states that during the Covid-19 lockdown, Thackeray's company Prabodhan Prakashan Pvt. Ltd showed "brilliant performance" of Rs 42 crore turnover and Rs 11.5 crore profit. The petitioners call this a "clear case" of black money being converted to white money.

The petitioner has a "hunch" that BJP leader Kirit Somaiya or both agencies must have "huge information" and links pertaining to Thackerays.

2. "Being Targeted": NCP Leader Approaches Bombay High Court Against Revocation of Chhath Pooja Permission By BMC

A petition was filed by a corporator of the Nationalist Congress Party (NCP) against revocation of permission for their 'Chhath Pooja' in Ghatkopar, Mumbai.

The petitioner alleged that while their permission was cancelled, the Municipal Corporation granted permission to another charitable organisation Atal Samajik Sanskruti Seva Pratisthan which allegedly supports the ruling BJP. They sought a stay on the permission granted to the second organisation.

However, the division bench headed by Justice RD Dhanuka orally refused an immediate stay but granted the petitioners liberty to approach the vacation bench for relief. The event is set for October 30, 2022.

3. Long Court Vacations Violate Litigants' Fundamental Rights, Must Be Abandoned: Plea In Bombay High Court

Case Title: Sabina Lakdawala v. Hon'ble Chief Justice, High Court Of Bombay & Ors.

A writ petition filed before the Bombay High Court challenged the long vacations of the court claiming that it is a violation of fundamental rights of litigants. The plea says courts during the vacations function with insufficient number of judges to hear the urgent cases.

The petitioner Sabina Lakdawala has sought a declaration that the long court vacations during Diwali, Christmas, and summer for more than 70 days in total is a violation of fundamental rights and should be brought to an end.

4. Bombay High Court Directs Lower Courts To Comply With SC, HC Orders & Processes Based On E-Copies; Amends Civil & Criminal Manual

The Bombay High Court amended the Civil Manual, 1986 and Criminal Manual 1980 directing compliance of Supreme Court and Bombay High court orders based on the e-copies communicated through the Fast And Secure Transmission of Electronics Records (FASTER) system without insisting on a hard copy of the same.