Bombay High Court Judgment Tracker: May 2022

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 May, 2022:

IPC

In Sham Timanna Gaikwad v. The State Of Maharashtra, the Court held that in the absence of premeditation, an accused can only be charged under the Second Part of Section 304 of the IPC. In the present case, the accused acted in the heat of passion under the influence of alcohol but without the intention to kill the deceased. Hence, the Court set aside the verdict of a sessions court under Section 302 and altered the offence to Section 299 read with Exception 4 of Section 300 of the IPC.

In Amol Kashinath Vyavhare v. Purnima Chaugule Shrirangi and Ors, the Court, relying on Bilal Ahmad Kaloo v. State of Andhra Pradesh and Amish Devgan v. Union of India held that there must be a reference to at least one religious community or class to constitute a violation under Section 505(2) of the IPC. In the present case, the articles published by the appellant allegedly suggested disharmony between the police staff of two offices which the Court held was insufficient to constitute an offence under Section 505(2) of the IPC. Moreover, the other charges of defamation were held untenable due to violation of procedure under Section 199 of CrPC.

In Laxman Pilaji Ovalekar And Another v. The State Of Maharashtra, the Court held that in the absence of clear evidence to prove motive and common intention, a person could not be held responsible for any injury other than any blow inflicted by said person. Here the accused was convicted under Section 302 of the IPC for being part of an unlawful assembly with a common intention to murder the deceased. The Court found that the deceased was medically unfit to deliver the dying declaration, and the testimonies of the eyewitnesses were inconsistent with the post-mortem report. Further, the blows inflicted by the accused did not cause the death of the accused and the prosecution was unable to prove motive and common intention with the other accused. In light of this, the Court set aside the sessions court's verdict and acquitted the accused.

In The State Of Maharashtra v. Guddu Krish Yadav, the Court overturned a death penalty verdict given by an Additional Sessions Judge in a case of murder under Section 302 of the IPC. The case was discharged against the accused because the prosecution had suppressed vital evidence and deliberately fabricated the dying declaration of the deceased, one Rajkumar, which formed the basis of the prosecution's case against the accused.

Indian Evidence Act, 1872

In Satish Mahadeo Kale v. The State Of Maharashtra, the Court while evaluating whether the dying declaration of the deceased was sufficient to convict the accused, held that in the presence of multiple dying declarations/statements the prosecution must show that the statements of the deceased are consistent, cogent and corroborative, and establish the guilt of the accused beyond reasonable doubt. Further, the Court observed that a dying declaration is itself sufficient to convict an accused if it is found to be voluntary and truthful, and thus, could inspire the confidence of the Court. In the instant case, since a different view from the dying declaration was possible, the guilt of the accused could not be established beyond reasonable doubt. Thus, the Court set aside the verdict of a sessions court and acquitted the accused.

In Nurul Shamsul Haq Shah v. The State Of Maharashtra, the Court held that procedural inaccuracies in recording the dying declaration make the statement inadmissible under Section 32 of the Indian Evidence Act, 1882. In the present case, the persons mentioned in the dying declaration were not produced in Court. Further, the witnesses were found not to be independent, and there were inconsistencies in the testimonies of the witnesses. Thus, the Court set aside the order of the trial court and allowed the criminal appeal.

Maharashtra Control of Organised Crime Act, 1999

In Maruti Navnath Sonawane v. The State Of Maharashtra, the Court held that in cases of the Maharashtra Control of Organized Crime Act, 1999, the accused cannot be sanctioned, charged and prosecuted under Section 23 of the said Act if there is no prima facie case made out against the appellant to establish the happening of a continuing unlawful activity under Section 2(d). In pursuance of the same principle, the Court in this case, discharged the case by giving the benefit of doubt to the Appellant who had pleaded for the above relief, while overturning the trial court order on the same.

Criminal Procedure Code, 1973

In Indiabulls Housing Finance Ltd. Thr Uma Salma Mansuri And Ors. v. The State Of Maharashtra And Anr, the Court held that the non-submission of an affidavit by the respondents, supporting the contents of their submission is an incurable defect. The Court set aside the order of the Judicial Magistrate ordering an investigation against the petitioner, under Section 156(3) of the Criminal Procedure Code, 1973, for diversion of funds, appreciating the fact that no financial institution had initiated any proceedings against the petitioner and the concerned loan had been repaid.

Code Of Civil Procedure, 1909

In Nitin Sitaram Waghmare v. Balu Kanha Gawade And Ors, while discussing a petition under Section 24 of the Code of Civil Procedure, 1908 (CPC) and Section 114 read with Order 47 of the CPC for clubbing of suits and leading common evidence, the Court held that when the parties in the suits are not the same and evidence of one of the parties has already been completed in one of the suits and reliefs claimed in both the suits are different, the suits cannot be clubbed. Hence, the Court upheld the decision of the trial judge and dismissed the petition.

In Shamrao Piraji Kadam v. Shri. Prakash Shivaji Chavan And Ors, the Court held that a delay in filing a substantive first appeal against an ex-parte judgement and decree because of a fraud committed on the petitioner is a reasonable cause for condoning a delay. In the present case, summons was served on a woman pretending to be the petitioner's wife; hence, there was want of knowledge about the suit proceedings and the ex-parte judgement on the part of the petitioner. Hence, the Court set aside the order of the district court and allowed the petitioner to appeal the ex-parte judgement and decree under Order IX Rule 13 of CPC.

Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963; Code Of Civil Procedure, 1909

In Mrs. Sicily Varghese Kadamthotuu v. Shri Ramanlal Jayshankar Trivedi, the Court held that non-registration of a document does not make it valueless and such document can be used to institute a case of specific performance of a contract. Further, the Court held that Section 4A of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 (‘MOFA’ Act) Act has an overriding effect on Section 4 of the MOFA Act, 1963. The Court allowed the first appeal quashing the ‘deemed decree’ and highlighted how the trial court erred in applying Order 7 Rule 11(d) of the Code of Civil Procedure.

Income Tax Act, 1961

In Zeal Real Estate Limited v. Union Of India, while discussing the validity of an order under Section 269UD(1) of the Income Tax Act, 1961 the Court relied on Jugal Kishore Jajodia v. S.C. Prasad, Chief Engineer to hold that issuance of a show-cause notice is not a mere formality and the parties must be clearly informed of the reasons which prompted the income tax authority to arrive at the prima facie conclusion that power under Section 269UD is to be exercised. A 15% difference between the sale consideration and market value is required to invoke Section 269UD. Further, the Court relied on Mrs. Amarjit Thapar v. S.K. Laul to observe that the income tax authorities must establish that a property was undervalued for the purposes of evading taxes. In the present case, the Court observed that the determination of undervaluation of a property is not a mechanical process and a margin of probable error is required and that the income tax authorities had failed to adequately inform the petitioner of the grounds which prompted the invocation of Section 269UD. Hence, the Court set aside the proceedings under Section 269UD against the petitioners.

In Sea Sagar Construction Co. v. Mr.V.A Nair & Ors, the Court held that once a project is taxed on its completion it cannot be taxed again for the earlier years by applying a particular percentage on the amount of work in progress shown in the balance-sheet. In the light of the observations, the Court allowed the petitioner to take exception to the notices issued by the respondent under section 148 of the Income Tax Act, 1961 aimed at re-opening the assessment for the previous years.

Constitution of India, 1950

In ABC v. The State Of Maharashtra And Anr, the petitioner filed a petition challenging her non-selection because she had always felt like a female and such refusal on the grounds that she is anatomically male is unconstitutional. The petition led to a compromise facilitated by the judge keeping in mind the poor economic situation of the petitioner’s family and the fact that she had a good academic record. With recommendations of the police force, the Respondents assured the Court that the petitioner would be accommodated in a non-constabulary post in the Police Force, in accordance with her educational qualification. With such assurances from the State, the Court disposed of the Writ Petition.

In Sharmila Sandesh Ghuge v. State Of Maharashtra through the Secretary, held that a policy modifying the promotion benefits of professors was not manifestly arbitrary and unreasonable since associate professors and assistant professors constituted two different identifiable classes. In the present case, the State of Maharashtra modified a Government Resolution, specifically Clause-7.3(VI)(i), thereby specifying that the date of promotion from Assistant Professor to Associate Professor would be the date of selection under Career Advancement Scheme for Colleges and Universities. Here, the petitioner argued that said modification was arbitrary since it created a class within a class in the matter of promotion between those eligible for promotion and those already promoted. However, the Court relied on the judgement of the Supreme Court in State of Uttarakhand vs. Sudhir Budhakoti to reiterate that discrimination would not be arbitrary if the classification is meant to provide benefits to an identified class. Hence, the modification was not held as violative of Article 14 and 21 since associate professors and assistant professors constituted two different identifiable classes.

Arbitration and Conciliation Act, 1994

In Tata Financial Capital Services v. Kunal Structure(India) Private Ltd, the Bombay High Court in discussing a petition for interim relief under Section 9 of the Arbitration and Conciliation Act, 1994 held that any interim relief sought from the Court is not subject to the agreement between the parties being stamped under the Maharashtra Stamp Duty Act, 1958. The Court held that the only qualification necessary to invoke Section 9 is to be a party to the agreement containing the arbitration clause. The present case involved a loan cum hypothecation agreement, and thus, the Court allowed the petitioners to take possession of the hypothecated goods as per the agreement between the petitioner and the respondent.

​​In Atul And Arkade Realty V. I.A.And I.C. Private Ltd. And 2 Ors, the Court held that in a case where a Joint Venture agreement is contested to be forged and fabricated, a court of law is competent to decide on the document's veracity while the civil aspect of fraud may legitimately form a subject matter of the arbitration. In the present case, the Court held that observations made in the trial deciding the document's veracity might well be used by the arbitrator to determine the validity of the agreement during arbitration.

Arbitration and Conciliation Act, 1996; Presidency Small Causes Courts Act, 1882

In Bafna Motors Private Limited. v. Amanulla Khan, the Court opined that a security deposit was not a ‘license fee, rent or charge’ under Section 41 of the Presidency Small Causes Courts Act, 1882 and thus, on a joint reading with Section 2(3) of the Arbitration and Conciliation Act, 1996, a case for recovery of the security deposit was not exclusively triable by the Court of Small Causes. In the present case, the respondent refused to return the security deposit of the appellants on the grounds that the appellants had damaged the licensed premises. The petitioners sought to invoke the arbitration clause in the agreement, to which the respondents replied that the issue of security deposits was exclusively triable by the Court of Small Causes. The Court held that a case for recovery of the security deposit was not exclusively triable by the Presidency Small Causes Courts Act. Hence, the Court permitted the petitioners to pursue relief through arbitration.

Public Interest Litigation

In Vanashakti, A Mumbai Based Non Profit Environment Non-Governmental Organization And Anr v. Municipal Corporation Of Greater Mumbai Through The Municipal Commissioner And 3 Ors, the Court held that the word ‘construction’ appearing in Part 7 of Sub-Regulation 3.3 of Regulation 34 of Development Control Regulation for Greater Mumbai 2034, which prohibits explicitly construction around the Powai Lake, is to be understood in its plain and natural meaning - construction is an act to build or erect. Here the Court considered whether the creation of a cycling and jogging track in the periphery of Powai Lake amounted to ‘construction’ against the claim of the respondents that the use of the ‘Gabion Technique’ did not amount to construction. Hence, the Court held the creation of the cycling and jogging track around Powai Lake to be in violation of the Development Control Regulation for Greater Mumbai 2034.

Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981

In Faiz Ahmed Mohammed Ali Khot v. The State Of Maharashtra And 5 Ors, the Court held that a teacher of a school under Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, is entitled to receive subsistence allowance for the the period of investigation into causes for suspension. Thus, the Court ordered the education inspector, and the school management to provide the petitioner subsistence allowance from the date of suspension till the conclusion of the inquiry under the Rules 34 and 35 of the Rules Associated with the 1981 Act.

Security Interest (Enforcement) Rules, 2002

In Prateek Pardeep Agarwal v. Union Of India And 4 Ors, a Division Bench of the Court upheld the constitutionality of the Rule 8(8) of the Security Interest (Enforcement) Rules, 2002 stating that ‘sale by private treaty can be conducted only after the sale by inviting tenders from the public or sale by holding public auction fails’. The Court revised its earlier position that ‘Sale by any methods other than public auction or public tender, shall be on such terms as may be settled between the secured creditor and the proposed purchaser in writing’ and disposed of the writ petition of the petitioner who challenged a sale by private treaty.

Maharashtra Co-operative Societies Act, 1960

In M/S. Om Construction And Infrastructures v. State Of Maharashtra And Ors, the Court held that an order relating to upset price fixation for recovery under Maharashtra Co-operative Societies Act, 1960, will be considered perverse and struck down in cases where courts ignore the valuations as have been provided by the Government Approved Valuer. In pursuance of the same principle, the Court struck down the impugned order of the District Deputy Registrar, Co-operative Societies, Nashik, allowing for the fixation of upset price, ignoring the quote provided by the Government Approved Valuer.

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971

In Shankar M Gowekar v. Divisional Transport Officer And Anr, the Court upheld the appeal preferred by the petitioner against dismissal under the provisions of Item 1(a), 1(b), 1(d), 1(f) and 1(g) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, on the grounds that the sole informant in the case was not an eyewitness to the incident and the Investigating Officer’s findings were unilateral, solely to indict the petitioner. In view of such findings, the Court decided that the Petitioner would be entitled to reinstatement with continuity of service and all consequential benefits from the date his services were terminated, but the petitioner would not be entitled to back wages.

Central Civil Services (Classification, Control and Appeal) Rules, 1965

In J.N. Meena v. Union of India, the Court held that for invocation of the suo motu power under rule 29(1)(v) read with rule 31 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the administrative appellate authority is required to record brief and tentative reasons for the reopening of proceedings against the order-in-original. Further, the administrative appellate authority is also required to put the resultant decision in transmission before the expiry of the period of six months. Further, such a course of action has to be read into Rule 29(1)(v) as part of the rule of fairness and non-arbitrariness in administrative action. The Court also observed that a violation of the prescribed process would violate Article 21. In the present case, the Court allowed the appeal against the order of the Central Administrative Tribunal and held that the Assistant Commissioner had exercised the suo moto powers arbitrarily without giving reasons.

Development Control Regulation 2034

In Manisha Mahesh Sawant v. M/S. Adhikari Engineering Private Limited, while discussing whether the petitioners were eligible for free alternate housing under a Slum Rehabilitation Scheme regulated by the Development Control Regulation, 2034, the Court held that only persons whose hutments were a part of the land earmarked for the Slum Rehabilitation Scheme as verified by the Slum Rehabilitation Authority were eligible for free alternate housing. In the present case, since the land survey record was incomplete, the Court ordered the Slum Rehabilitation Authority to complete the land survey.

Railways Act, 1989; Railways Claim Tribunal Act, 1987

In Harish Chandra Damodar Gaikwad v. Union Of India, the Court held that a person travelling on a pass, even in the absence of an identity card, would be deemed a ‘passenger’ under Section 2(28) of the Railways Act, unless it is proved that such person was travelling on a pass issued in the name of another person. Further, the Court in discussing the claim for damages under Section 16 of Railway Claims Tribunal Act, 1987, on account of injuries suffered in the course of a railway journey, also rejected the claim of the railways that the petitioner had suffered ‘self-inflicted injuries’ which is not included for a claim of damages under Section 123C(2) of the Railways Claims Tribunal Act, 1987. The Court referred to the Supreme Court judgement in Union of India v. Rina Devi to reiterate that self-inflicted injuries only referred to deliberately caused injuries and not to mere negligence. In the present case, the injuries were not self-inflicted and were caused to a bonafide passenger and; hence, the Court ordered that damages be paid to the petitioner after medical verification of injuries.

The Limitation Act, 1963

In Chandralik (B) Chs Ltds v. Manish Rajnikant Jaitha And Ors, the Court dismissed a writ petition filed by the petitioner on the grounds that the explanation offered by the filers for the delay in the Impleadment Application was fair and reasonable and directed the trial court to proceed with the trial expeditiously. The petitioner had challenged the allowing of an Impleadment Application by the Small Causes Court in a Rent and Eviction Suit on the grounds that a delay of 1195 days had occurred before filing this petition and such delay was not justifiably explainable, hence, the Impleadment application must be dismissed.

Railway Protection Force Rules, 1987

In Sanjay Nhobat Singh v. Union of India through the Minister of Railways, the Court held that a delay in raising objections against dismissal could not amount to a complete waiver of the objection. The Court relied on the ratio laid in Union of India and Ors. Vs. Ram Lakhan Sharma to dismiss the petitioner's claims regarding the competence of the disciplinary authority, non - appointment of the presenting officer and the simultaneous prosecution of departmental and criminal proceedings under the Railway Protection Force Rules, 1987. Since the Court found some irregularities in the conduct of the enquiry officer, it partly allowed the petition and remanded the matter back to the disciplinary authority.

Real Estate (Regulation and Development) Act, 2016; Evidence Act, 1872

In Jayesh Tanna, Director of ITMC Developer Pvt. Ltd. v. Radha Arakkal & Ors , the Court, following Section 92 of the Evidence Act, held that a written agreement between parties cannot be substituted or altered by a subsequent oral understanding. The appeal by the petitioner was dismissed, and the Court upheld the orders of MahaRERA, holding the petitioner liable to pay compensation under Section 18 of RERA for failure to deliver possession.

Wildlife Protection Act, 1972

In M/S. Sai Pushp Enterprises And Ors v. Thane Municipal Corporation And Ors, the Court, relying on District Magistrate, Haridwar and Anr. v. Harish Malhotra, held that a provision under a statute must exist for levying a fee. In the present case, the concerned property was outside the statutory limits of the Eco Sensitive Zone as specified under the Wildlife Protection Act, 1972. Thus, the Court discharged the appellants' liability from paying the conservation fee.

Maharashtra Industrial Regulations Act, 1946

In Adani Electricity Mumbai Ltd. v. The Chief Conciliator and Ors, the Court held that companies engaged in the generation and supply of electricity in the local area of Greater Bombay are covered under the Notification dated 14th September 1959 and other notifications issued under Section 2 of the Maharashtra Industrial Relations Act, 1946 (‘MIR Act) and would fall under the jurisdiction of the MIR Act. Thus, the ‘reference’ of the case would be adjudicated by the Industrial Court

Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission and Fees) Act, 2015

In Dr. Prutha Prakash Khaparde v. State Of Maharashtra Thr Its Dept. Of Medical Education And Drugs And Ors, the Court held that violation of the prescribed procedure for admission under Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to the Postgraduate Ayurveda, Unani and Homeopathy Courses) Rules, 2016 cannot be condoned under Article 226 of the Constitution. In the present case, the petitioners had taken admission in a course for which they were ineligible and had sought regularization of their admission. As an alternate remedy, the students sought compensation from the college. The Court held that since the colleges had breached the provisions in the law for admission, the students were entitled to compensation from the colleges.