While sources concerning specific subject matters exist, there exist few sources that allow practitioners to be aware of developments with respect to specific forums. The Bombay High Court Judgment Tracker intends to fill this gap by providing a monthly gist of all decisions of the Bombay Bench of the Bombay High Court.
Since the purpose of the column is to provide a brief snapshot of all decisions to practitioners, the authors have avoided undertaking an analytical critique of the decisions.
Here is a summary of all decisions of the Bombay Bench of the Bombay High Court for the month of December, 2020
Maharashtra Village Panchayat Act, 1959
In Mr. Hanumant Ananta Kad and Anr. V/s. State of Maharashtra and Ors., the Court upheld the order passed by the collector, Pune on the ground that the proviso to Section 10(1)(b) of Maharashtra Village Panchayat Act, 1959 and Rule 3 of the Bombay Village Panchayats (Number of Members, Divisions into Wards and Reservation of Seats) Rules, which specifically provides that a panchayat area shall be divided into wards in such a manner that the ratio between the population of each ward and the number of seats allotted to it shall, so far as practicable, be the same throughout the panchayat area.The petitioners by the present writ petition have challenged the order passed by the respondent no.3-Collector, Pune. Through this order, Collector Pune allowed the objection raised by Respondent no.3 for including an area named as ‘Sara City’ in ward no.1 which earlier was included in ward nos.5 and 6 of the Kharabwadi Village Panchayat, Taluka Khed, District Pune. Therefore, to maintain conformity with the population of wards to that of seats allotted, it was necessary to include ‘Sara City’ in ward no.1 and hence, no illegality is committed by alteration of ward.
Trade Union Act, 1926
In Ravindra Valmik Konkar And Ors Vs The Registrar Of Trade Unions Thane Dist And Anr, the Court held that Section 28-1A of Trade Union Act, 1926 which confer powers on the Industrial Court to decide certain disputes referred to in Sub Section (1) of Section 28-1A and Regulation 23 of the Bombay Trade Union Regulation 1927 which prescribes the manner of referring such dispute to Industrial Court in no manner vest any adjudicatory power with the Registrar. Hence, Registrar, Trade Union does not possess adjudicatory powers and that such powers are vested only in Industrial Court. On the basis of the said provision this court quashed the order passed by the Registrar refusing the certificate to the petitioner and ordered Respondent No.1 to issue the consent certificate in form –“L” in respect of the dispute raised by the Petitioner, within a period of three weeks from the date on which the order is uploaded.
Trademarks Act, 1999
In Essdee Industries v. EsbeeEectrotech LLP, it was held that in a composite suit involving distinct causes of action concerning infringement of trademarks and designs, under the Trademark Act, 1999 and the Design Act 1999, the mere invocation of Section 19(4) of the Design Act, which mandates that the District Court transfer the proceedings to the jurisdictional High Court if a defense with respect to the very registrability of the design is raised, would not preclude the plaintiff from withdrawing the suit, to the extent such withdrawal pertains to the cause of action of trademark infringement. Here, the defendant argued that once Section 19(4) is invoked, the District Court loses jurisdiction to proceed with the case, and that any application for withdrawal would have to be made to the High Court to which the proceedings have been transferred. The High Court rejected the argument on the ground that while Section 19(4) precludes the District Court from proceeding with the suit, it does not preclude the District Court from allowing the withdrawal of suit to the extent it pertains to the cause of action trademark infringement.
Arbitration and Conciliation Act, 1996
In DhargalkarTechnoesis (I) Pvt Ltd v. Mumbai Metropolitan Regional Development Authority, the Court held that the absence or presence of the word ‘arbitration’ in the contract is immaterial while determining the existence of an arbitration clause. It was further observed that a contractual clause mandating the referral of a dispute to an individual or authority would not necessarily constitute an arbitration clause, as it could alternatively be a clause concerning resolution of disputes by mediation, or conciliation. Finally, the Court followed the Supreme Court decision in Jagdish Chander v. Ramesh Chander&Ors (2007) 5 SCC 719 and reiterated the essential attributes of an arbitration agreement – that the (a) the agreement must be in writing, (b) that the parties must have agreed to refer to any present or future disputes to the decision of private tribunal, (c) that such tribunal should be empowered to adjudicate upon disputes in an impartial manner, and (d) the parties should have agreed that the decision of the private tribunal in respect of the disputes will bind them. Following Jagdish Chander, the Court held that since the requirement of impartial adjudication with due opportunity was missing, a valid arbitration agreement could not be held to be existing.
In Kishor Shah &Anrs v. Urban Infrastructure Trustees Limited and Anr, the Court held that stay granted against the enforcement of an arbitral award under Section 36, need not necessarily be conditional, and in appropriate circumstances, can be unconditional. However, the Court also stated that unconditional stays, cannot be the norm, and can only be granted in exceptional circumstances. The Court further held that the proviso to Section 36(3), which states that the Court while considering an application for grant of stay in the case of an arbitral award for payment of money shall have “due regard” to the provisions of the Code of Civil Procedure, is not mandatory, and does not extinguish judicial discretion to grant an unconditional stay. It was further reiterated that a single transaction could yield multiple, distinct causes of action.
Customs Act, 1962
In Exim Corporation v. Union of India, the Court held that there exists no provision under the Customs Act, 1962 which authorizes the detention of goods. Interpreting Section 110 and 124 of the Act, the Court clarified that even if the concept of detention did exist under Customs Act (as was the understanding of the revenue), goods can only be detained after seizure. Relying on sub-section (1) and (2) of Section 110 of the Act, the Court held seizure of goods, without giving of notice under Section 124 is only permitted up to a duration of six months, and extendible to six further months, in specific circumstances. Since the goods had already been seized for a period of more than the prescribed and extendible period combined, the Court ordered the immediate release of the imported goods.
Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002, Maharashtra Value Added Tax Act, 2002
In State Bank of India v. The State of Maharashtra &Anr, the Court held that the right of recovery of a secured creditor under the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002, would prevail over the charge of the revenue authorities under Maharashtra Value Added Tax Act, 2002 (“the MVAT Act”). The Court relied on the phraseology of Section 37 of the MVAT Act to arrive at the conclusion that the secured creditor’s right would prevail. The Court held that mere fact that Section 26E of the Act, which accorded priority to secured creditors, had not come into force would not result in the subordination of the creditor’s right in view of the operation of Section 31B of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. It was held that since Section 31B created a substantive right in favour of secured creditors, it would be immaterial, whether the recovery was undertaken under SARFEASI or under the RDDBFI Act. It was further held that it was immaterial whether the revenue department’s charge was created before that of the secured creditor.
Indian Evidence Act, 1872
In Tanaji Maruti Kolekar v The State of Maharashtra,the Court held that the fact that the accused led the police party and pointed to the place where the dead body was concealed, was admissible as evidence under Section 8, Indian Evidence Act, 1872. In this case, the accused did not make any disclosure statement prior to the discovery of the corpse, but instead led the police there himself. The Court observed that while the lack of a disclosure statement rendered the evidence inadmissible under Section 27 of the Act, the act of leading the police to the corpse was nonetheless admissible as ‘conduct that is influenced by a fact in issue’, under Section 8 of the Act. The Court further held that the inability of the accused to explain the circumstances in which he came to know about the location of the concealed body, had led to a presumption of guilt against him.
In Sayeed Dabestani @ Sayeed Irani @ Akbar Irani And Others v. The State Of Maharashtra, the High Court of Bombay stated that when a case rests completely on circumstantial evidence, the inference of guilt can be substantiated only when the incriminating evidence is found to be incompatible with the innocence of the accused. There shouldn’t be any gap left in the chain of evidence. The High Court found several gaps and fallacies on the side of the prosecution witnesses and their statements. The main fallacy in this case was the negligence on part of the Investigating Officer to provide documentary evidence of the accused’s possession of the premise where the deceased was found dead. Due to these reasons, the High Court quashed the order of the Trial Court and found that the latter came to the conclusion without properly looking into the prosecution evidence.
Code of Criminal Procedure, 1973 (Cr.PC)
In SatpalsinghSurajsinghBawari v The State of Maharashtra and Ors., the Court held that courts must use their powers under Section 311, Cr.PC to recall witnesses, if doing so would prevent injustice to any party at any stage of a trial. In the present case, the Court observed that, owing to the incompetence of the advocate representing a rape accused at the trial stage, neither was the accused present in the courtroom during the initial cross-examination of the prosecution’s witnesses, nor did the cross-examination meet the basic requirements of putting any defence/omissions/contradictions/improvements to the witnesses. The Court also considered that if convicted, the accused could face a minimum of ten years of imprisonment. In such circumstances, the Court ordered the special judge at the trial stage to exercise its powers under Section 311, Cr.PC to recall the witnesses so that they may be cross-examined again.
In Directorate of Enforcement v The State of Maharashtra and Ors., the Court held that the Enforcement Directorate could not be classified as a ‘victim’/‘injured person’ for the purposes of filing protest petitions against closure reports submitted by the police. In the present case, the police filed a closure report before the magistrate’s court in an FIR relating to certain scheduled offences under the Prevention of Money Laundering Act, 2002. The Enforcement Directorate’s application for intervention was rejected by the Magistrate’s Court. On appeal, the Court relied on the Supreme Court’s judgement in Bhagwat Singh v Commissioner of Police and Anr. to hold that only complainants, injured persons, and heirs of the deceased had locus to be heard by a magistrate before an order regarding a closure report was passed. Since the Enforcement Directorate did not fall under either of the three categories, it had no locus to intervene. The Court further opined that only the high courts and the Supreme Court, exercising their powers under Section 482, Cr.PC, could hear applications for intervention by anyone falling outside the three categories as mentioned above.
In Michael Gabriel V/s. DattaramKashiram Ambre &Ors., the Court held that a notice under Section 340 of Cr.P.C can be issued on an application seeking condonation of delay. The court relied on the ratio of Supreme court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors. (1995) 1SCC 42 and Gujarat High Court decision in State of Gujarat Vs. Kailashchandra Badriprasad 2000 SCC Online Guj 809 where the court has held that while passing an order of condoning the delay which is likely to adversely affect the respondent, is obviously required to hear the respondent. The party against which the Court is intending to pass the order of condonation of delay has a direct and substantial interest in the matter, and therefore, the Court can pass the order only after hearing such party. Through this petition, the order of learned small causes court at Mumbai was challenged where it was contended by the petitioner that the Court is not required to issue notice or afford any opportunity of hearing to the person against whom an action / complaint under Section 340 of Cr.P.C. might be filed, before initiating the prosecution. The Court rightly mentioned that the decision in Sharadchandra (supra) and Kailashchandra(supra) have been rendered in the context of launching of the prosecution and the condonation of delay in filing an appeal against acquittal respectively, the ratio would apply to the present case also.
In Yogesh Waman Athavale vs Vikram Abasaheb Jadhav, C.J.S.D. And Judicial Magistrate First Class and Ors, the Court issued directions to the learned Principal District and Sessions Judge with a request to monitor the performance of respondent No.1 for one year henceforth by randomly checking the judgments and orders and keep the High Court informed, if required, for necessary action. The court further considered the fact that the Respondent No.1 has already been summoned by the administrative side of this High Court and has been counseled on his conduct. Hence, it is believed that the Respondent No.1 would use his mind judiciously and would not disregard the set precedents of Superior Courts.
General Clauses Act, 1897
In Vikrant Angolkar v The State of Maharashtra along with Bhimashankar Rangnath Khade v The State of Maharashtra, the Court reiterated the principle embodied in Section 6A, General Clauses Act, 1897 and held that whenever an amendment act of a particular legislation is repealed by a repealing act, then the amendments effected by the amendment act to the parent/main act shall not automatically lapse. In order for such amendments to lapse, the repealing act would have to show such contrary intention, either expressly or impliedly. In the present case, both the applicants were seeking pre-arrest bail in connection with an offence under the Essential Commodities Act, 1955. They argued that while the relevant offences in this case were rendered ‘non-bailable’ by the Essential Commodities (Amendment) Act, 1974, the amendment act was however subsequently repealed by the Repealing and Amending Act, 1978. The Court held that the passage of the repealing act did not automatically restore the status of the offence in question to ‘bailable’. The repealing act also did not show any express or implied intention to affect in any way the amendments already made to the parent act. Thus, the offences remained ‘non-bailable’, and the applications for pre-arrest bail were accordingly rejected.
Constitution of India, 1950 and the Birth and Death Registration Act, 1969
In Prabhakar Yashwant Salve v The Chief Engineer, Maharashtra State Electricity Transmission Company Ltd., the Court relied on the Supreme Court case in Bharat Coking Coal Ltd. &Ors. v Shyam Kishore Singh 2020 (3) SCC 411 and held that government servants cannot change the date of birth on the service register at the fag end of their service when they are about to retire even if it was wrongly recorded in the birth certificate.
Mumbai Municipal Corporation Act, 1888
In BhalchandraVasudeo Rao v The Municipal Corporation of Greater Mumbai, the Court held that in absence of credible evidence to show that a commercial structure existed before the cut-off date of 1 April 1962, the Municipal Corporation of Greater Mumbai has all authority for all unauthorised structures to be pulled down.
In Vinitia Umesh Singh v The Administrator and Ors., the Court held that candidates who are similarly situated should not suffer patent discrimination in admissions to government education institutions. The Court also held that even though framing of educational standards and policy is in the domain of executive and the Court cannot substitute its views on such matters by way of judicial review, however in the event such a policy is unreasonable, discriminatory and in breach of the equality guaranteed by the Constitution, the Court will have all rights to exercise its powers of judicial review to protect fundamental rights of aggrieved persons. Here the Court was dealing with admission rules framed by an education institution which discriminated between similarly placed candidates in the process of its admission.
Maharashtra Municipal Corporation Act, 1949
In Sandeep Pandurang Patil v State of Maharashtraalong with Santosh SopanDhavakar v State of Maharashtra, the Court held that the words 'Commissioner' and 'Corporation' under the Maharashtra Municipal Corporation Act, 1949 signify two distinct authorities under the Act and cannot be interpreted synonymously. The Court also held that when a statutory provision provides for any kind of consultation procedure, then such consultation procedure should be carried out in the spirit of what the legislation aspires to seek, rather than an empty formality.
Maharashtra Regional & Town Planning Act, 1956
In City Development Corporation of Maharashtra Limited v State of Maharashtra, the Court relied on the case of Bombay Environmental Action Group and another v. The State of Maharashtra & Others held that exceptions can be made for removing mangroves in the State of Maharashtra if the work in question is for the public good and therefore for the betterment of public interest. However, the Court stated that this shall be subject to the condition that the Petitioner shall strictly comply with the conditions imposed in the permissions granted by SEIAA and the MOEF for carrying out the project.
In Mumbai VA KokanVibhagyaMahilaAdyogikUtpadakSahakari Sanstha Mahasangha v State of Maharashtra &Anr., the Court held that writ courts should not sit as appellate courts over decisions of the government if such decisions are not malafide or arbitrary. Here the Court was dealing with a petition challenging the validity and terms of a government tender issued by the State of Maharashtra which supposedly discriminated between interests of self-help groups, societies and large conglomerates by making it difficult for lower-income organisations from entering the bidding process.
Constitution of India, 1950 and Maharashtra Ownership of Flats Act, 1963
In Kashish Park Realty Pvt. Ltd. v State of Maharashtra and Ors., the Court held that a governmental authority can only issue a corrigendum to correct a typographical or arithmetic error arising due to accidental slip or omission, however such power to rectify cannot be with power of review. A corrigendum hence cannot take away the vested right of a person nor can it have the effect of nullifying the rights of the person conferred by law. Further, the Court held that power of review is not an inherent right but a creature of statute and can only be used for correction of mistakes and not to substitute views.
Protection of Children from Sexual Offences Act, 2012
In XYZ v. State of Maharashtra &Anr., the Court held that the appellant, accused of committing sexual assault on a minor girl, could not be released on bail as there was a likelihood that the appellant could tamper with the prosecution witnesses and evidence. The Court considered the fact that the victim was a minor girl below the age of 15 and the statements of the victim and the other witnesses as well as other material collected during the course of the investigation, prima facie disclosed the involvement of the appellant in the alleged offence.
In XYZ v. ABC, the Court held that where there exists prima facie evidence of involvement of the accused in the commission of a sexual offence against a minor girl, then in view of the serious nature of the offence, bail should not be granted to the accused. The Court further noted the possibility of likelihood of tampering evidence as another reason to deny bail.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981
In Sunil PandharinathDhotre v. The Commissioner of Police, Nashik and Ors. , the Court relied on the judgment of the Madras High Court in P.ChinnasamyThevar v. State of Tamil Naduand held that an unreasonable delay in communicating the order of confirming detention under the Act would render the detention unconstitutional. The Court further noted that the Sponsoring Authority did not place the detailed order of the Sessions Court stating reasons for granting bail to the detenu, and only forwarded the operative part of the order to the detaining authority. The Court relied on the judgment of the Bombay High Court in Mukesh &Mukya Ramesh Desaikar v. Vivek Phansalkar&Ors.and the Supreme Court in RushikeshTanajiBhoite v. State of Maharashtrawhich was of the view that the full text of the order granting bail in favour of the detenu was necessary to be placed before the detaining authority, to facilitate him to take an appropriate decision thereby recording subjective satisfaction.
In Laxman @ Kaka Yallappa Jadhav (Detenu) Vs The Commissioner Of Police, Solapur And Ors., the court held that the order of Detention issued under Section 3(2) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black-Marketing of Essential Commodities Act, 1981 by the Respondent No. 1 be quashed and set aside and on quashing the same the Petitioner be ordered for release forthwith unless otherwise he is required in any other matter. While dealing with one of the issues, the court further held that the findings of the detaining authority are based on the possibility of Petitioner being released on bail in respect of offences affecting law and order and not public order and hence, this ground therefore cannot form the basis of the detention order as the alleged offence is not an offence against public order.
Constitution of India, 1950 and the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981
In Wasim @ Mukri A. Salar v. The Commissioner of Police, Solapur &Ors., the Court held that when the petitioner has been detained especially without a trial, the explanation for delay in deciding the representation of the petitioner has to be reasonable and satisfactory. In this case, the representation of the petitioner who had been detained under the Act was not attended by the State Government for over four months. The Court relied on the judgment of the Supreme Court in Harish Pahva v. State of Uttar Pradesh &Ors. , which dealt with the issue of the effect of delay in deciding the representation by the State Government within reasonable time of a detention order. Holding that no reasonable and satisfactory explanation with respect to the delay had been given to representation of the petitioner by the State Government, the Court ordered the release of the petitioner from detention.
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019
In Saksham Facility Services Private Limited vs. Union of India, the court held that the prime object of the Scheme is to unload the baggage of pending litigation centering around service tax and excise duty and that this broad picture must be kept in mind while considering a declaration seeking amnesty under the scheme. The court held that the term ‘quantified’ under the scheme to include a letter intimating duty demand or duty liability admitted by the person during enquiry, investigation or audit etc.
Constitution of India, 1950 and Income Tax Act, 1961
In M/s Tata Teleservices (Maharashtra) Limited v. Deputy Commissioner of Income Tax (TDS), the Court followed its previous decision, involving the same assessee, in M/s. Tata Teleservices (Maharashtra) Limited Vs. Deputy Commissioner of Income Tax (TDS)-2(3), and held that the mere existence of an alternate remedy cannot be the basis to reject a writ petition, where the alternate remedy would be an “empty formality’. The Court observed that where the impugned act of the Deputy Commissioner of Income Tax, was undertaken on the concurrence of the Commissioner of Income Tax (TDS), no purpose would be served in mandating the assessee to file a revision under Section 264 of the Income Tax Act to the Commissioner of Income Tax. It was further held that the grant of certificate under Section 197 should be preceded by a quasi-judicial order founded on merits.
Constitution of India, 1950
In Elizabeth Benjamin Joseph And Anr Vs The State Of Maharashtra Through Secretary School Education Dept. And Anr, it was held that the autonomy of minority education institutes cannot be restricted by the imposition of a ban on the recruitment of teaching, and non-teaching staff, and that such a ban would be violative of the constitutional rights of such educational institutes under Article 30 of the Constitution. It was also held that Government Resolution (which imposed the ban), was issued after the recruitment process had already started, then the Resolution cannot operate to bar appointments made under the already started resolution process
In VinobhaBhave Nagar Godavari Adhyapak Cooperative Housing Society Ltd. &Anr v. Central Railway &Anr, the Court followed the Supreme Court decision in ABL International Ltd v/s. Export Credit Guarantee Corporation of India 2004 3 SCC 553 and held that a Writ Petition would be maintainable notwithstanding a dispute with respect to facts. It was further observed that jurisdiction exercised under Article 226 includes the power to issue a writ of mandamus where the public authority has failed to exercise or has wrongly exercised the discretion conferred upon by a statute or rule or policy decision of the government, or even in such circumstances where the discretion exercised is malafide, or based on irrelevant considerations or has where the discretion exercised frustrates the very object of conferring such discretion. Here, the Railways Authority refused to grant a no-objection certificate, to a redevelopment project on the ground that such project would encroach on railway land, despite multiple surveys, and verifications which revealed that no such encroach would exist. Accordingly, the Court ordered the railways authority to grant the No-objection certificate.
In Mrinmayee Rohit Umrotkar v. Union of India & Others, it was held that where a bank ceased to be ‘body corporate’ under a special enactment, and instead attained the identity of a ‘Company’ governed by the Companies Act 1956, without deep and pervasive administrative control of the Government of India; such bank could not be regarded as a ‘Government of India Undertaking’. It was further held that merely because the Central Vigilance Commission exercised vigilance control over the bank, and that 51% of shareholding percentage of the bank was held by a government company would not necessarily mean that such bank was also a government company.
In Welcome AugustenMascaren vs. State of Maharashtra, the court placed emphasis on Smt. MunoliRajashriKarabasappa v. State of Maharashtra and Ors. and held that the Government Resolution would not apply to a recruitment process that commenced prior to 2nd May 2012. While relying on the principles of Smt. MunoliRajashriKarabasappa the court extended its application to non-teaching staff, and held that Government Resolution will not be applicable to an appointment made under an advertisement issued prior to the issuance of the Government Resolution.
In NeelimaSadanandVartak v Union of India &Ors., the Court held that Article 282 of the Constitution of India allows for emergent transfer of funds from the consolidated fund of India for need of public purposes underlying in the Directive Principles of the State Policy under Part - IV of the Constitution of India. The Court also held that no citizen can approach a court seeking an order of mandamus against the government on the basis of Directive Principles of the State Policy under Part - IV of the Constitution of India and each government is free to decide the nature and extent of benefits it may want to make available to its citizen as per their own limitations.
In Dilip Mohan Desai v State of Maharashtra, the Court held that it is a cardinal principle of construction of statute that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The Court further held that unless there are words in the statute sufficient to show the intention of the legislature to affect its existing rights, it should always be deemed to apply prospectively. In holding the foregoing, the Court explained that rights conferred by a statute are not destroyed by events which took place before the enactment of such statute.
In Dyna Estate Pvt. Ltd. and Anr v State of Maharashtra and 7 Ors., the Court held that unless gross illegalities or a failure of justice was made out in a process of slum rehabilitation, the Court would not interfere with it merely on technical grounds, in its writ jurisdiction under Article 226. Reiterating that its writ jurisdiction was an equity jurisdiction, the Court said that it must be satisfied that its interference in a matter would further the causes of justice, equity and good conscience. In the present case, the petitioner challenged the Slum Rehabilitation Authority’s decision to grant a rehabilitation project to the respondent, while rejecting its own proposal. The Court took a wholistic view of the facts of the case and observed that the project was already running a two-decade long delay. Setting it aside merely on procedural improprieties would extend the plight of the slum dwellers, and run exactly contrary to the policy objectives of slum rehabilitation schemes. The writ petition was thus dismissed.
In Rabindra Nath Kakar and Ors. v Union of India and Ors., the Court held that PILs that are based on a suppression of material facts, and espouse the private interest of the petitioners, must not be entertained. In the instant case, the petitioners had successfully obtained an interim injunction against the construction of a bridge in 2019, on the strength of a 2006 order of the Court that had placed a freeze on the destruction of mangroves for construction purposes, in the entire state of Maharashtra. However, it was later discovered that the petitioners had failed to disclose the presence of an order of the Court of 2017, that had specifically granted permission for this particular project on the grounds of public interest. In these circumstances, the Court held the petition to be an abuse of the process of law, and dismissed it with costs.
Maharashtra Stamp Act, 1958
In AjayBipinchandra Jhaveri &Anr. v. Sanjay Pandurang Kalate&Ors., the High Court of Bombay opined, after relying on Shri Durgashankar S. Trivedi, vs. Shri Babubhai Bhulabhai Parekh that merely marking the sale agreement as an exhibit will not be conclusively construed as proof of the document. Further, the party challenging the admissibility of the documents has to be observant to note that inadmissible documents must not be admitted as evidence by the Court.
In the case of Anax Industries Pvt. Ltd. v. Micro Logistics (I), Pvt. Ltd. the High Court of Bombay propounded that the right to General Lien cannot be exercised by anyone other than bankers, factors, wharfingers and attorneys of High Court and brokers. The dispute arose when the defendants failed to release the bill of lading for consignment of three containers even after the plaintiffs paid the required amount for the sea freight charges. After a perusal of the conversation between the representatives of the parties, the Court opined that the defendants do not possess the right to retain the goods under Section 171 of the Indian Contract Act, 1872, thereby quashing the District Court’s order of staying the release of the Bill of Lading and allowing the present appeal.
Indian Penal Code, 1860
In Rakesh Dattatray Rindhe v. The State of Maharashtra, the High Court of Bombay while dealing with the issue of whether the accused’s actions would fall under Exception 4 to Section 300 or Section 302 of Indian Penal Code, held that claiming sudden and grave provocation to avail alteration for a lesser sentence or even acquittal would depend on circumstances in which the offence has been committed coupled with the fact whether the incident had taken place on the spur on the moment, the intention/knowledge of the accused while inflicting blow or injury and whether the injury was caused without premeditation in a sudden fight. In the present case, the Court held that the accused did not have an intention to cause the death of the deceased but he had enough knowledge to know that his act of strangulation as well as pushing him to a pit would cause him grievous hurt and death.
In Shobha Gurunath Mali and Ors. v State of Maharashtra, in evaluating the motive, the court held that motive is not a sine qua non for murder and the act of the accused can be proved by direct or circumstantial evidence. In the case of circumstantial evidence, it may be taken into account if the guilt of the accused is proved beyond reasonable doubt.
In Sanjay DhonduManchekar v The State of Maharashtra, the court held that the sentence is necessarily to be adequate, just and proportionate with the gravity and nature of crime. The mitigating and aggravating circumstances are required to be taken into consideration while awarding sentence under Section 420 of the Indian Penal Code. By taking the circumstances following the term of arrest into consideration, the court reduced the period of rigorous imprisonment to 3 years.
In Faiyaz @ Baba ArifZariwala v State of Maharashtra, the Court held that the evidence of a rape victim must be considered to be at par with the evidence given by an injured witness. Once the victim’s evidence was held to be free of basic infirmities, and passed the probability test, then as a general rule such evidence would need no further corroboration. Opining on the issue of sentencing for rape convicts, the Court held that a sentence must be proportionate to the gravity of the offence, and not the social standing of the victim or the accused. Further, judges must give special reasons for imposing sentences that are lesser than the minimum sentence prescribed under Section 367, IPC. The Court also observed that the passage of a long period of time before the filing of a rape complaint could not be a reason to justify leniency towards the accused.
In Rajesh JaganKarote and Anr. v State of Maharashtra and Anr. along with Savita YashodeepVadode and Ors. v State of Maharashtra and Anr., the Court referred to the Supreme Court’s judgement in Kashmir Kaur and Anr. v State of Punjab to reiterate that the offence under Section 304B, IPC was an exception to the principle that an accused was entitled to a presumption of innocence in his favour. In the present case, circumstantial evidence had established that the victim was subjected to harassment in relation to a demand for dowry soon before her death, and such death had occurred within seven years of her marriage under abnormal circumstances. Additionally, it was observed that the death of the victim was within the special knowledge of the husband, however, he had failed to explain both, the circumstances leading to the victim’s death, and his own whereabouts at the time of death. The Court upheld the husband’s conviction for dowry death given by the sessions court.
Narcotics Drugs and Psychotropic Substances Act, 1985
In Hitesh Hemant Malhotra v. State of Maharashtra, the High Court of Bombay held that while determining the commercial quantity of LSD, the weight of the paper on which the LSD drops are added cannot be calculated and accounted as part of the total weight of LSD seized. The Court dismissed the reliance on Hira Singh &Anr. v. Union of India wherein the issue concerned was regarding whether the mixture of a narcotic drug or a psychotropic substance with a neutral substance should be calculated while determining the commercial or small quantity. The Court held that this disqualification also implies that the applicant cannot attract the rigorous charges as mentioned under Section 37 of the NDPS Act, 1985. In this regard, the Court allowed the appeal and allowed for the accused to be released on bail.
In State of Maharashtra v. Sudabai Narhari and Others, the court affirmed the decision of the Trial Court and stated that the strict and compulsory compliance of the search and seizure provision i.e. Section 42 of the NDPS Act is mandatory for the effective validation of evidence under the NDPS Act.
Central Goods and Services Tax Act, 2017
In Raju Laxman Pachhapure and Ors. v. Union of India and Anr. the Bombay High Court held that there is a hierarchy of authorities that must be approached by the petitioners in order to avail the remedies under the Central Goods and Services Tax Act, 2017 and that the petitioners cannot directly approach the High Court under Article 226 of the Constitution of India. The High Court thereby held that they would not be able to exercise their power to issue writs against the respondents. The petition was dismissed in light of the aforementioned reasons by the Court.
In AJE India Private Limited v. Union of India and Ors. the High Court of Bombay held that the provisional attachment of the bank accounts of the petitioner is invalid as per Section 67 read with Section 83 of the Central Goods and Services Act, 2017, which conjointly read would imply that in order to exercise the power of inspection, search and seizure, the proper officer must have reasons to believe that the taxable person has suppressed any taxable transaction to evade payment of tax. The High Court of Bombay, relying on the Supreme Court’s decision in Parle Agro (P) Ltd. Vs. Commissioner of Commercial Taxes, Trivandrum, held that products falling under the specific regulation under the Food Safety and Standards (Food Products, Standards and Food Additives) Regulations, 2011 would qualify as fruit based juice, thereby invalidating respondent’s claims. The Court further stated that the word ‘may’ in Section 83 indicates that such exercise of power is discretionary and such discretion has to be just and judicious as the said power has serious ramifications if not exercised properly.
The authors are Rahul Sibal, Radhika Vijaraghavan, Rahil Mehta, Rahul Kumar, Partha Mansukhani and Milind Rai.