Bombay High Court Weekly Round Up: September 5 To September 10, 2022

Uttam Energy Ltd. v. M/s. Shivratna Udyog Ltd. 2022 LiveLaw (Bom) 317

Ku. Priyanka v. District Caste Certificate Scrutiny Committee, Chandrapur 2022 LiveLaw (Bom) 318

Ingram Micro India Pvt. Ltd. v. Mohit Raghuram Hegde 2022 LiveLaw (Bom) 319

Sharad Darade v. State of Maharashtra with 8 connected matters 2022 LiveLaw (Bom) 320

Somnath Jotiram Chavan & Ors. v. State of Maharashtra & Ors 2022 LiveLaw (Bom) 321

Commissioner of Customs (Import) v. Dinesh Bhabootmal Salecha 2022 LiveLaw (Bom) 322

Pratap Prakash Jadhav v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 323

Reports/Judgments

Commercial Court Cannot Be Regarded As A 'Person Or Institution' Under Section 11(6) Of The A&C Act: Bombay High Court

Case Title: Uttam Energy Ltd. v. M/s. Shivratna Udyog Ltd.

Citation: 2022 LiveLaw (Bom) 317

The Bombay High Court ruled that the jurisdiction and power of the High Court in relation to the appointment of an arbitral tribunal under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), has not been divested by the Commercial Courts Act, 2015.

The Court added that the term "all applications or appeals arising out of such arbitration", as provided under Section 10 (3) of the Commercial Courts Act does not include the application required to be filed under Section 11 (6) of the A&C Act before the High Court for seeking appointment of arbitrator(s).

Justice G.S. Kulkarni held that a Commercial Court can never be regarded as a "person or institution" under Section 11 (6) of the A&C Act, and that the term "any person or institution" would not include a Court exercising any judicial power.

Caste Certificate - Ordinary Residence Of Applicant Cannot Be Determined In A Summary Enquiry: Bombay High Court

Case Title: Ku. Priyanka v. District Caste Certificate Scrutiny Committee, Chandrapur

Citation: 2022 LiveLaw (Bom) 318

The Nagpur bench of Bombay High Court held that the question of ordinary residence of a person for the purpose of verifying caste certificate cannot be determined without a Vigilance Cell inquiry and providing the person an opportunity to submit evidence.

The court held that the question whether an applicant is ordinary resident of the area within the territorial jurisdiction of the competent authority is a question of fact and has to be decided by granting the applicant necessary opportunity to prove it.

The court further observed that Rule 14 of the 2012 Rules prohibits verification of caste certificate by the Scrutiny Committee when such caste certificate is issued to a migrant from another State. "A caste certificate issued to a claimant by an Authority other than one from the State of Maharashtra cannot be verified", the court stated.

Accepting Terms And Conditions on Website Containing Arbitration Agreement, Valid: Bombay High Court

Case title: Ingram Micro India Pvt. Ltd. v. Mohit Raghuram Hegde, Proprietor Creative Infotech

Citation: 2022 LiveLaw (Bom) 319

The Bombay High Court held that reference of a dispute to arbitration can only be refused in cases of "serious allegations of fraud", which is made out when either of the tests propounded by the Apex Court in Avitel Post Studioz Limited & Ors. v. HSBC PI Holdings (Mauritius) Limited (2020), are satisfied.

Justice G.S. Kulkarni ruled that a declaration made by a party in the KYC executed by it, accepting the terms and conditions provided on the opposite party's website, which included an arbitration agreement, was sufficient for incorporation of an arbitration clause between them.

[MP Mohan Delkar Suicide] Bombay High Court Quashes Abetment FIR Against Dadra & Nagar Haveli Administrator & 8 Others

Case Title: Sharad Darade v. State of Maharashtra with 8 connected matters

Citation: 2022 LiveLaw (Bom) 320

The Bombay High Court quashed FIR against Dadra and Nagar Haveli Administrator Praful Khoda Patel, Collector Sandeep Kumar Singh, Police Superintendent Sharad Darade, and other authorities for allegedly abetting suicide of Mohan Delkar, seven times Member of Parliament (MP) of Dadra and Nagar Haveli.

The court observed that to attract Section 120 (B) IPC, there must be positive material to show that the accused persons came together for hatching a conspiracy and effect was given to that conspiracy. There must a positive act for satisfying the word abetment in order to charge someone for abetment of suicide. However, the material in the FIR doesn't satisfy any of these requirements.

[MPSC Exam] Judicial Intervention In Result Even At Interim Stage Of Proceedings Affects All Candidates: Bombay High Court

Case Title: Somnath Jotiram Chavan & Ors v. State of Maharashtra & Ors

Citation: 2022 LiveLaw (Bom) 321

The Bombay High Court held that courts should refrain from interfering in results of examinations as judicial intervention affects all candidates and not just the parties seeking relief.

"Indeed, we would venture to suggest that except in the most exceptional circumstances, there should not be such interim interventions by a Court for the simple reason that allowing the benefit to even a single candidate (let alone 250) irredeemably alters the balance in regard to the other candidates who have managed to cross the qualifying threshold criteria", the court stated.

Justices G.S. Patel and Gauri Godse dismissed three writ petitions challenging Maharashtra Administrative Tribunal's (MAT) order upholding the decision to delete certain questions from a recruitment exam conducted by the Maharashtra Public Service Commission (MPSC).

[Section 110A Customs Act] Owner Does Not Include Importer Of Goods: Bombay High Court

Case Title: Commissioner of Customs (Import) v. Dinesh Bhabootmal Salecha

Citation: 2022 LiveLaw (Bom) 322

The Bombay High Court held that seized goods can only be provisionally released under Section 110A of the Customs Act, 1962 in favour of the owner of the goods and no one else.

"The said section does not include or envisage release of goods provisionally in favour of an importer of goods much less does it envisage, a release in favour of 'any person', in addition to the owner as mentioned in Section 124 of the Act, who has been served a notice under the said section", the court held.

Bombay High Court Directs State To Conduct Public Prosecutor Exam In Marathi Also

Case Title: Pratap Prakash Jadhav v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 323

The Bombay High Court directed the state government to conduct the exam for recruitment of public prosecutors in English as well as Marathi language.

The direction would not be applicable for the upcoming exam to be conducted by MPSC on 11^th September but for subsequent examinations.

Other Developments

Bombay High Court Issues Notice On Plea Challenging CGST Rules

Case Title: SAT Industries Limited v. Union of India & Anr.

The Bombay High Court issued notice to Maharashtra and central government in a petition challenging amendment to Central Goods and Service Tax Rules, 2017 (CGST Rules).

Earlier, Rule 21A(2) of the CGST Rules 2017 provided for a reasonable opportunity of being heard before suspension of registration. However, this portion has been deleted via notification dated 22nd December, 2020.

Petitioner is challenging the omission of the words "after affording the said person a reasonable opportunity of being heard" in Rule 21A(2) contending that this omission violates principles of natural justice.

Bombay High Court To Suo Moto Analyze Rights Of Wild Animals In Human Dominated Society, Takes Cognizance Of Gadchiroli Elephants Shifting To Zoo

Case Title: Court on its own Motion v. Union of India

The Nagpur Bench of Bombay High Court took suo moto cognizance of Forest Department's decision to move wild elephants from Gadchiroli forest to a zoo.

Justices Sunil B. Shukre and Valmiki SA Menezes took up the matter after a news item published in Times of India which reported that three wild elephants had been shifted to a proposed zoo in Gujarat was brought to the court's notice.

The court observed that the issue was of seminal importance from the viewpoint of public interest and raises a fundamental issue regarding rights of wild animals within the society dominated by human beings and the framework of the Constitution.

The court observed that presence of wild elephants adds to the biodiversity of Gadchiroli forest. Shifting them to a Zoo would result in harming biodiversity, and would be against the spirit of the Biological Diversity Act, 2002.