Bombay High Court Judgment Tracker: August 2023

A summary of judgments and orders passed by the principal bench of the Bombay High Court in the month of August 2023.
Judgement Tracker August 2023
Judgement Tracker August 2023

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 August 2023.

Arbitration and Conciliation Act, 1996

In Bhupinder Singh Balwant Singh v/s Rajiv Kutty, the Court held that the arbitration clause in a contract is an independent clause and that while exercising the power of appointing an arbitrator, the Court is required to look into its existence as well as the validity of the arbitration agreement. The Court further espoused the ‘blue pencil doctrine’ (which is a judicial standard for deciding whether to invalidate the whole contract or only the offending words) by deleting the offending part by simply running a blue pencil through it.

In Capacite Infraprojects v/s T. Bhimjyani Realty Pvt Ltd, the Court held that if there is a precondition for invocation of the arbitration proceedings in the arbitration agreement, it is imperative for the parties to take recourse to the remedy which is provided as a pre-condition for invocation of the arbitration proceedings and before an appointment is sought under Section 11(6) of the Arbitration and Conciliation Act, 1996.

In Paramount Limited v. Ion Exchange (India) Limited, it was held that in arbitration proceedings, the requirement of 'due notice' for appointing an arbitrator is essential, and a party's failure to provide such notice, specifying the time frame and consequences of noncompliance, does not activate the default mechanism of appointing a sole arbitrator.

Further, the Court dismissed the appeal stating that the single judge had held correctly that the arbitrator had no jurisdiction to pass the award since Paramount - having not given notice of application under Section 9 to Ion Exchange before invoking Section 42 of the Act - did not act bona fide and was estopped from raising the contention of bar under Section 42 of the Act.

Bombay Money Lenders Act, 1946

In Shri. Gulabrao Mahadeo Ghorpade v. Shri Chandrakant Pandharinath Nehate & Anr., it was held that the provisions of the Bombay Money Lenders Act, specifically the definition of 'business of money lending' and 'loan', do not necessarily apply to cases under Section 138 of the Negotiable Instruments Act. The Court emphasized that money advanced on the basis of a negotiable instrument, which does not fall under the category of 'business of money lending' as defined, does not preclude prosecution under Section 138. The decision clarified the legal distinction between money lending as a business activity requiring a license and individual transactions involving negotiable instruments, affirming that the latter can be subject to proceedings under Section 138 regardless of the money lender's licensing status.

Code of Civil Procedure, 1908

In the case of Vasant Bhaskar Thakur (deceased through legal heirs) v Sitaram Waman Thakur, the High Court, relying on the holdings in Sirajudheen V/.s. Zeenath and Others and Shivkumar and Others V/s. Sharanabasappa and Ors, held that mere failure of the trial court to consider or inappropriateness in considering the evidence on record cannot be a ground for remanding the suit to the trial court under Order 41 Rule 23A of the CPC. The Court also observed that the power to remand a suit for fresh trial is to be exercised in exceptional circumstances by the appellate court and cannot be exercised in a routine manner. Thus , the Court held that a retrial cannot be ordered just because the appellate court finds fault in the findings recorded by the trial Court.

In Trishala Vaibhav Jain v Vaibhav Manoj Jain, the Court, relying on N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha. held that in view of the settled law in the prevailing socio-economic paradigm in Indian society, while considering a transfer application under Section 24 of the Code of Civil procedure, firstly the wife’s convenience must be looked at and secondly the convenience of the wife has to be preferred over the convenience of the husband.

In India Realty Excellence Fund II LLP v Gautam Jagdish Ahuja Ors, the Court relying on IDBI Trusteeship Services Limited V/s. Hubtown Limited, held that there is no impediment in proceeding with the matter and getting a decree when a defendant is adjudged insolvent during the pendency of a commercial suit. The Court also relied on The Official Assignee, High Court, Madras and Ors V/s. Mangalambal and Ors to hold that the official assignee would be a necessary party only if the suit was “relating to the property of the insolvent”, and the term “relating to” cannot be taken to mean “affecting”. Therefore, though the defendant had been adjudicated insolvent pending the proceeding, as it is a money decree and does not “relate to” the property of the defendant, Section 68(1)(d) is not attracted and the official assignee is not required to be made a necessary party.

In Trishul Media Entertainment v Retrophiles Private Limited & Ors, the Court relying on Tata Sons Vs. Pramod Shah held that the ingredients required to be satisfied by the plaintiff seeking leave under Order I, Rule 8 of CPC are that the plaintiff represents a class having a common interest in:

a. the right or the liability alleged in the suit

b. grievance or injury complained of; and

c. the relief sought.

In Shriram General Insurance Company Ltd v/s Jyoti Vithoba Nahire, the Court reaffirmed the principle laid down in the case of Bhagwan Ganpatrao Godsay v/s Kacchrulal Bastimal Samdariya that in the absence of any decision to the contrary, wherein the Court held that the word “shall” as used in sub-rule (3) of Rule 3-1 in Order XLI of the CPC should be construed as permissive and not mandatory.

In Edelweiss Special Opportunities Fund v/s Future Corporate Resources, the Court held that plaintiffs in a case cannot be permitted to invoke Order XI Rule 1(1)(c)(ii) of the CPC, as applicable to commercial suits, to rectify the lacunae in their pleadings when pressing for interim reliefs.

In Anjali Sales Corporation v. Binaykumar B Shrivastava, it was held that mere assertion of a defense without supporting evidence, especially in the context of financial transactions, does not suffice to dismiss or impede a summary suit.

In M/s. Gini Silk Mills Ltd v. Soham Fashion & Ors., it was held that under Order XXXVII Rule 2(3) of the Code of Civil Procedure 1908, in cases of non-appearance by the defendant, the plaintiff is entitled to a decree for the claimed amount, along with the specified interest and costs. This principle applies in situations where the defendant, despite being duly served, fails to appear in court, leading to an assumption that the allegations in the plaint are admitted.

In Mrs Pallavi Shivraj Patil Vs Mr Shivraj Balaram Patil, it was held that in determining the transfer of matrimonial proceedings under Section 24 of the Code of Civil Procedure, the convenience and hardship of the wife are paramount. The Courts must prioritize the wife's convenience and hardship, taking into consideration the socio-economic backdrop and the practical difficulties she may face in attending court proceedings.

In Shri. Parag Prakash Mutha Vs Kashinath Barku Bhalsingh Decd Thru Lhrs And Ors, it was held that the addition of parties to a lawsuit under Order 1 Rule 10 of the Code of Civil Procedure should not change the nature of the suit or cause unnecessary complications. Adding parties should be essential for the effective resolution of the suit's core issues and should not transform the suit into a different character.

Finance Act, 1994 read with Central Excise Act, 1944

In Venkateshwara Hatcheries Private Limited v The Commissioner of Central Excise, the Court relying on Padmini Products v. Collector of Central Excise held that the mere failure or negligence on the part of the producer or manufacturer either not to take out a licence or not to pay duty in a case where there was scope for doubt as to whether a licence was required to be taken out or where there was scope for doubt on whether goods were dutiable or not, would not attract the extended period under Section 11-A of the Central Excise Act, 1944.

Further, it relied on Chahabria Marketing Ltd. V. Commissioner of Service Tax to hold that the benefit of exemption was available to all the business auxiliary services provided by a commission agent.

Lastly, relying on Pratibha Processors vs. Union of India, the Court held that the "interest" payable under Section 61(1)(2) of the Finance Act, 1994 is a mere "accessory" of the principal and if the principal is not recoverable/payable, nor would be the interest on it. Thus, when the goods are wholly exempted from the payment of duty on removal from the warehouse, one cannot be saddled with the liability to pay interest on a non-existing duty.

In Board of Control for Cricket in India (BCCI) v. Commr. of Service Tax-1, the Court held that a tax tribunal’s finding that the petitioner has not received the entirety of the consideration in foreign exchange cannot be construed as a mistake apparent from the record and a review of an earlier order cannot be done via a rectification application under Section 35C(2) of the Central Excise Act as applicable to the Service tax. The Court ultimately held that the tribunal was wrong in rejecting the rectification application, that the tribunal wrongly distinguished Commissioner of Service Tax-VI vs. Balaji Telefilms Ltd and that this constituted a mistake on record. However, whether it was correctly appreciated or not cannot be construed to be a mistake apparent from the record. To support its viewpoints, the Court cited the case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers while dismissing the appeals.

The judgment authored by Justice Kulkarni concluded that the Supreme Court would be required to adjudicate on the applicability of tax on franchisees that are undertaking export services, as per the mandate of the provisions of Section 35L of the 1994 Act and that the appeals were not maintainable in the High Court.

In IDFC First Bank Ltd. Vs The Union Of India Thr The Secretary Ministry Of Finance Dept And Anr., it was held that a significant and unexplained delay in the adjudication of a show cause notice, particularly when the original noticee has undergone substantial legal changes such as mergers or restructuring, renders the continuation of proceedings related to the notice impracticable and legally untenable. The Court referred to Section 73(4B) of the Finance Act, 1994, emphasizing that a reasonable delay in adjudication could be justified, but it should not be unexplained, unjustified, unreasonable, or inordinate.

In Principal Commissioner of CGST and Central Excise Mumbai East v. Larsen and Toubro, it was held that under Rule 6 of the CENVAT Credit Rules 2004, a manufacturer or service provider who does not maintain separate accounts for inputs and input services used in manufacturing both dutiable and exempted goods has the option to reverse the proportionate CENVAT credit. This interpretation applies retrospectively as per the amendments by the Finance Act 2010. Thus, the failure to maintain separate accounts does not preclude the option of reversing proportionate credit for the input services used in the manufacture of exempted goods.

Forest Conservation Act, 1980

In Vijayalaxmi Shrinivas Panditrao v. Conservator of Forest, the Court observed that if a circular delineates the manner in which the entries in the record of a right in respect of, “forest” are to be made, where orders of restoration of the forest land have been passed under Section 22A of the Maharashtra Private Forest Act, 1975, directions contained in such a circular are in relation to the entry made in the revenue records on the basis of an order of restoration of the lands passed under Section 22A of the Act. However, if the petitioner did not apply for the same, the initial action of the authorities to make an entry in the revenue record of “State of Maharashtra- reserved Forest” on the basis of State Government directives cannot be sustained, the Court said. The Court also held that the subject lands never vested in the State government under Section 3 (1) of the Private Forest Act, 1975 and, therefore, provisions contained in Section 2 of the Forest Conservation Act, 1980 were not attracted since the Maharashtra Revenue Tribunal had allowed land to be retained by the owners. Recording this same, the Court modified the mutation entries, while also relying on the case of Sankalp Resorts Limited and Another Vs. State of Maharashtra, through Principal Secretary and Others.

Hindu Adoption and Maintenance Act,1956

In Jeetendra Gorakhnath Singh And Anr Vs Yash Suresh Malani And Anr, it was held that an adoption under the Hindu Adoptions and Maintenance Act, 1956, is valid if the child is given and taken with the intent to transfer the child from one family to another. As per the Act, an adoption deed does not need to be registered to be valid.

Income Tax Act, 1961

In Sterlite Technologies Ltd. v/s The Deputy Commissioner of Income Tax, the Court held that where on consideration of material on record, the assessing officer takes a conclusive view on the matter, it would not be open to reopen the assessment based on the very same material to take another view.

In Astec Life Sciences v/s The Assistant Commissioner of Income Tax, the Court held that an assessing officer has to mention if there is tangible material demonstrating that there has been an escapement of income from assessment and that the same must be disclosed if the assessing officer wants to reopen an assessment after a period of four years.

In Siemens Financial Services Pvt. Ltd. v/s The Deputy Commissioner of Income Tax, the Court held that compliance with Section 151(iii) of the Income Tax Act is a jurisdictional requirement for getting approval from the specified authority. If this requirement is not fulfilled, the reopening of the assessment is not valid.

In The Commissioner Of Income Tax, International Taxation-1 Vs Apl Co. Pte. Ltd, it was held that the application of Article 24 of the India-Singapore Double Taxation Avoidance Agreement (DTAA) is limited to cases where income is taxed in Singapore by reference to the amount remitted or received in Singapore, and not by reference to the full amount.

In Shelf Drilling Ron Tappmeyer Ltd. Vs Assistant Commissioner Of Income -Tax (It) Circle-4(2)(1) Mumbai And Ors.,it was held that the final assessment order by the Income Tax Officer must be completed within the prescribed limitation period under Section 153 of the Income Tax Act, 1961, even when Section 144C of the Act is applicable. While Section 144C provides a specific process for handling certain types of assessments, it does not override the overall time limits set by Section 153.

In Kartik Sureshchandra Gandhi v. CIT, the Court quashed the order passed by the CIT under Section 148A(d) and the notice issued under Section 148 of the Act. It held that there was non-application of mind by the Principal Commissioner of Income Tax while issuing notice for reopening an assessment by not giving reasons for the same and the elapsed time period was more than 10 years, which exceeded the statutory period of 3 years.

In Smita Rohit Gupta v. CIT, the Court quashed an order by the Principal Commissioner of Income Tax and sent it back to be decided on merits. The Court considered whether a question of the Commissioner having a change of opinion would arise when an order under Section 143(1)(a) of the Act had been passed. The Court stated that the powers conferred to the Principal Commissioner under Section 264 are very wide in scope and can be used in matters when there is no alternate relief available to be granted to the assessee, citing the cases of Hindustan Diamond Company Pvt. Ltd. v. CIT and Vijay Gupta v CIT Delhi-III. It also distinguished the judgment of ACIT v Rajesh Jhaveri Stock Brokers (P) Ltd on the grounds that the Court, in that case, was considering the provisions of Section 147 for re-opening the assessment and in the present case, it was considering a change in opinion after an order had been passed.

In Shri jitendra Pandurang Chaudhari & Ors. v Moreshwar Dinkar More & Ors., it was held that the grant of a temporary injunction in a partition suit is contingent upon a prima facie assessment of familial relationships and claims to the disputed property. The property's current state should be maintained when familial relationships and the nature of the properties that are potentially shared family assets are central to the case.

In Indian Hume Pipe Co. Ltd v Commr. Of Income Tax, Central II, the Court held that the Assessing Officer and the Income Tax Tribunal can only use the test of commercial expediency to determine whether an expenditure was wholly and exclusively laid out for the purpose of the business. Reasonableness of the expenditure has to be adjudged from the businessman's point of view and not from the Revenue’s perspective, the Court added, citing the case of J. K. Wollen Manufacturers Vs. Commissioner of Income Tax and CIT Vs. Walchand & Company Pvt. Ltd.

Indian Penal Code, 1860

In Nitin Aganda Lade v State of Maharshtra, the Court held that since the prosecution witness was declared hostile and the prosecution had not adduced any other evidence to prove motive , the conviction of the accused could not be based on the testimony by such a witness that the accused was last seen with the deceased.

In Dhyan Investments and Trading Company Limited and Anr v. Central Bureau of Investigation and Anr, it was held that a private settlement in a civil case does not automatically negate criminal liability in a related criminal case. The Court emphasized that the nature and facts of civil and criminal proceedings are distinct. Even if a civil dispute is amicably settled, it does not necessarily lead to the quashing of criminal proceedings, especially in cases involving serious allegations like fraud and conspiracy.

In Sandip Shivaji Kamble v. State of Maharashtra, the Court was dealing with a case involving allegations of rape. The Court took note of various circumstances such as the victim being under the influence of Tadi, the victim not alleging an earlier instance of rape in the FIR, nothing on record indicating that the accused were acting in furtherance of a common intention, the Test Identification Parade not being carried out as per established guidelines, no witnesses actually witnessing the incident and no forensic report specifically opining evidence of sexual assault. All of this warranted extending the relief of suspension of execution of the substantive sentence on the accused, pending the appeal, the Court opined.

In Shivaji Punjaram Gaikwad v. State of Maharashtra, the Court held that considering the evidence and circumstances of the case, the evidence of last seen in the present case by itself cannot be said to be incriminating having regard to the evidence that has come on record, such as the deceased being found 2-3 days after being missing, lack of evidence supporting the claim that the appellant was 'seen following' the deceased or any witness seeing the deceased and the appellant together. With no conclusive medical evidence pointing to the approximate time and place of death of the deceased, the last seen theory would not be applicable and would not prove the case of the prosecution beyond all reasonable doubt, the Court said, citing the cases of Nizam & Anr. v/s State of Rajasthan and Anjan Kumar Sarma & Others v/s State of Assam.

Indian Succession Act, 1925 read with Indian Evidence Act, 1872

In Ajay Harpal Singh v Deepti Ajay Singh, the Court, relying on H. Venkatachala Iyengar Vs. B. N. Thimmajamma & Ors, held that when a party is propounding a will or otherwise making a claim under a will, Sections 67 and 68 of the Evidence Act become relevant. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such handwriting under Sections 45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Additionally, the Court held that there must necessarily be evidence to support the knowledge of the Testator on the nature and effect of the dispositions made under the will which he is stated to have signed.

Further, relying on State of Haryana Vs. Harnam Singh and Ors, the Court held that there cannot be mechanical compliance with the provisions of Section 63 of the Succession Act. The Court is, therefore, required to determine whether in substance and spirit, the provisions of Section 63 have in fact been fulfilled.

Industrial Disputes Act 1947

In Rajesh Ashok Mankar v. Konkan Railway Corpn. Ltd., the Court held that the submission of evidence to the Disciplinary Authority and non-acknowledgement of the receipts by the Authority would amount to perversity in the findings and attract judicial scrutiny in a domestic enquiry, citing the case of SBI vs. Ajai Kumar Srivastava. It also held that appointing an employee on an existing pay scale and then reducing the pay grade would be impermissible in law, citing the case of South Bengal State Transport Corpn. v. Ashok Kumar Ghosh.

Integrated Goods and Services Act, 2017

In Globolive 3D Pvt. Ltd. v. Union of India, it was held that the services provided by the petitioner, involving Satellite-derived 3D model services, would qualify as "export of services" under Section 2(6) of the IGST Act. The Court found that the petitioner satisfied all the conditions from (i) to (iv) required under the said definition, with the service recipient located outside India, the place of supply of service being outside India, and the payment received in convertible foreign exchange. The Court also clarified that the petitioner's services did not constitute Online Information Database Access or Retrieval services (OIDAR) as defined in Section 2(17) of the IGST Act. Consequently, the Court held that the petitioner was entitled to the claimed refund for the export of services, and no recovery proceedings could be initiated based on the impugned order.

In Municipal Commissioner v. Ashok Kisan Borade, it was held that the scheme for preferential treatment appointments (PT appointments) based on the Lad-Page Committee recommendations cannot be extended beyond the specific posts determined by the employer. Compassionate appointments, being an exception to the rule of equality, are to be strictly in line with the employer’s scheme. The appointment cannot be claimed as a right and is subject to strict scrutiny of various parameters.

Maharashtra Co-operative Societies Act, 1960

In the case of Bhiwandi Powerloom Co-operative Society Ltd. v State of Maharashtra and Ors, the High Court held that defaulting allottees of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by the terms and conditions of allotment and enjoying the benefits of extended period and later seek to deny their liability as per the agreed terms. The Court also held that the government resolutions are applicable to the cooperative society since it is by virtue of government decisions that the land came to be initially allotted to it. Thus, having deposited the amount and furnishing the bank guarantee, it was now the duty of the society to keep the bank guarantee alive as a condition to continue the enjoyment of the benefits of the land and it could not assail the applicability of the government resolution at a belated stage.

Maharashtra Control of Organised Crime Act,1999

In State of Maharashtra v. Shiva Rishipal Tusambad, the Court held that at the stage of remand, before cognizance is taken, the respondent/accused could not have been discharged according to Section 11 of the Maharashtra Control of Organised Crime Act.

Maharashtra Employees of Private Schools (Conditions of Services) Act, 1977

In Janabai Nivrutti Saune v/s Dharamveer Shambhuraje, the Court held that communication of a list of Assistant Teachers by the Education Officer cannot be treated as a Seniority list for the purposes of proving seniority of an Assistant Teacher and that simply because the petitioner's name was placed at a higher number than other teachers, it cannot be construed that the petitioner was senior to others. The Court also held that Rule 27(e) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 was subject to a caveat that the strength allotted to a reserved category does not exceed the percentage of reservation prescribed.

In Sunil Subhash Ekhande v. State of Maharashtra, the Court noted that in several connected cases regarding the appointment of librarians, the Court had held the decision in the Satish Patil case to be binding in matters concerning clauses 1, 3 and 4 of a Government Resolution dated August 3, 2006. The Court also held that once the petitioners were appointed as librarians, they could not approbate and reprobate by challenging the process after they were appointed and their appointment as librarians confirmed. The Court relied on the cases of Shyam Telelink Ltd v Union of India, Union of India v N Murugesan and Nagubai Ammal v B Shama Rao. The Court also held that the assailed clauses of the GR dated August 3, 2006 were not arbitrary or in violation of Articles 14 or 21 of the Constitution of India.

Maharashtra Industrial Relations Act, 1946

In Indo Count Industries Ltd. v. Shahu Sooth Kapad Kamgar Sangh, the Court dismissed a writ petition stating that in an interim stage of a matter involving wage revision, where most of the details were not yet adjudicated and where only a discretionary order was passed so far, there was no need for the Court to interfere.

MPDA Act

In Pranali Yogesh Karkhandis v/s The State of Maharashtra, the Court held that if in-camera statements are not recorded when the detenu (detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Person Engaged in Black Marketing of Essential Commodities Act, 1981 [MPDA Act]) is in custody, it raises doubt on its credibility in as much as the incidents referred to in the in-camera statements were prior to the date of arrest of the detenu and the in-camera statements were recorded only fifteen days after the detenu was released on bail.

Maharashtra Prohibition Act,1949

In Daund Sugar (P) Ltd. v. State of Maharashtra, the Court held that it was not permissible for the State government to issue a notification under the Bombay Molasses Amendment Rules, 2017 to enhance the levy of fee from ₹1 per metric ton to ₹ 500 per metric ton when the same had been declared illegal, citing the cases of Sahakar Maharashi Shankarrao Mohite Patil Sahakari Sakhar Karkhana Ltd., and Solapur vs. State of Maharashtra & Ors.

Maharashtra Land Revenue Code, 1966

In Avinash Madhukar Kharat and Anr. v. The State of Maharashtra and Ors., it was held that the pre-deposit requirement under Section 256 of the Maharashtra Land Revenue Code, 1966, applies only when a party seeks a stay on the execution of an order and not at the stage of filing or hearing of an appeal under Section 247 of the same code. The Court clarified that an appeal can be heard and disposed of on its merits without insisting on a pre-deposit unless a specific stay application is filed by the party.

Maharashtra Municipal Corporation Act, 1949

In Wintary Engineering Chemical Pvt. Ltd. v. State of Maharashtra and Ors., it was held that the jurisdiction of the Kalyan-Dombivali City Municipal Corporation to levy Local Body Tax (LBT) under the Maharashtra Municipal Corporation Act, 1949, extends to areas included within its revised boundaries. Additionally, the Court held that the repeal of LBT provisions by Maharashtra Act No. XLII of 2017 does not invalidate previous LBT assessments due to the saving clause in Section 78 of the Act. The Court also found the levy of penalty and interest on LBT as per the rules to be within the powers conferred by the Municipal Corporation Act.

In Kokuyo Camlin Ltd. v. State of Maharashtra, the Court held that it could not examine the vires of sub-section 152D of the MMC Act since the petitioner primarily questioned the assessment orders passed by the Municipal Corporation of Mumbai in its averments and petitions, citing the case of Kharghar Co-op. Housing Societies Federation Ltd. through General Secretary & Anr. Vs. Municipal Commissioner, Panvel Municipal Corporation. It also held that Article 226 of the Indian Constitution could not be invoked in assailing the assessment. The proper remedy would be to challenge the assessment order by taking recourse to the statutory remedy of an appeal, the Court opined, citing the cases of Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta and Anr, Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors and M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors.

In Sakharam G. Mahadik v. Swagat Builders & Developers, the Court held that a pre-suit under the provisions of Section 487(1)(a) of the MMC Act needs to state with reasonable particularity the cause of action and that a communication calling upon the Municipal Corporation to pay dues would not be sufficient to be classified as a pre-suit notice. It also held that since the suit did not disclose a clear right to sue for the purpose of recovery of the compensation paid for the area handed over under reservation, the relief sought could not be granted. The Court cited the case of Dahiben V/s. Arvindbhai Kalyanji Bhanusali while arriving at its decision.

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

In Commissioner Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore, the Court held that when the respondent retired from service as a permanent employee, she became entitled to pension and other pensionary benefits payable under the provisions of the Maharashtra Civil Services (Pension) Rules, 1982. The Court ruled that the actions of the Municipal Corporation, in denying pension and other pensionary benefits to the respondent, was clearly arbitrary. The Court also noted that the non-payment of pension is not covered by any of the items in Schedule - IV of the MRTU and PULP Act, 1971. It proceeded to factor in the long time period of the litigation (15 years) involved in the case while granting the respondent relief. The Court ruled that despite the fact that the respondent erroneously claimed pension in her recovery application, the same would not destroy her lawful right to receive pension which is guaranteed under the Rules.

Maharashtra Regional Town Planning Act, 1966

In Tulsidas Gopalji Charitable and Dhakleshwar Temple Trust v. State of Maharashtra and Ors., it was held that once a reservation on land lapses under Section 127 of the Maharashtra Regional Town Planning Act, 1966 due to the Planning Authority's failure to acquire the land or take steps towards acquisition within the stipulated period, the land cannot be subjected to re-reservation for the same or different purpose. The lapse of the original reservation frees the land from any further reservation, making it available for development in accordance with the law.

In Cosmos Constructions v. Municipal Corpn., the Court held that once a modification entry is passed, it cannot specifically state an exclusion from an earlier situation, especially in light of circumstances where the modification speaks of the land being reserved for the Maharashtra Housing and Area Development Authority (MHADA), but has not been claimed by MHADA or shown as such or updated in the development plan. The Court held that in such a case, the principle of Wednesbury unreasonableness must be applied. The Court concluded that the decision taken by the Board upholds the said principles, especially since further land of the petitioner was under the threat of being acquired under the Development Scheme.

Motor Vehicles Act, 1988

In the case of Deenbandhu Singh Shivsaran Singh & Ors. v Bharat Tarachand Bhaglat & Ors., the Court relying on APSRTC vs. M. Ramadevi and Ors. and Sanobanu Nazirbhai Mirza & Ors. vs. Ahmedabad Municipal Transport Service, held that there is no embargo or restriction on the Court to grant more than the amount claimed by the appellants and that a just, reasonable and proper compensation is to be awarded. The Court also held that by relying on Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr, the compensation is to be decided on the basis of the age of the deceased, the income of the deceased and the number of dependents. The loss of dependency is to be determined on the basis of the additional deductions to be made while arriving at the income, the deduction to be made towards the personal living expenses of the deceased and the multiplier to be applied with reference to the age of the deceased, the Court added. Lastly, the Court clarified that interest should be awarded from the date of the claim application.

In the case of IFFCO Tokio General Insurance Co.Ltd. v Manisha Tanaji Bhoir & Ors., the Court relying on New India Assurance Co. Ltd. vs. Alpa Rajesh Shah and Ors., held that for the purpose of calculating compensation under the Motor Vehicles Act, 1988, the income of the deceased on the date of the death ought to have been taken into consideration. The Court clarified that the income on the date of death does not mean exactly on the date of the death but a piece of evidence reasonably close to the date of the death. Further, relying on Oriental Insurance Co. Ltd. vs. Pritam Rajiv Shetty and Ors, the Court held that a claim application is not a plaint governed by the Code of Civil Procedure, 1908, nor is it a civil suit but it is a special proceeding under the Special Act, that is, the Motor Vehicles Act and therefore, the law, of which strict compliance is required while filing civil suit, cannot be applied while dealing with the proceedings under the Motor Vehicles Act.

Maharashtra Value Added Tax Act, 2002

In Aurobindo Highway Services v. State of Maharashtra, the Court held that merely because certain clauses were provided in the agreement in view of the nature of the cargo to be carried and to ensure that the transportation of products does not get disrupted, it did not necessarily mean that the right to use tankers transporting the cargo stood transferred in favour of HPCL by AHS, more so, when the agreement provided for the substitution of the vehicles. The Court also held that such an agreement could not be construed as the transfer of a right to use goods and that the tribunal was wrong in holding that the transportation job with the use of tank trucks with HPCL amounted to a transfer of the right to use goods.

In Kalpataru Power Tranamission Ltd. v. State of Maharashtra, the Court considered a show cause notice issued to deny deduction on account of profit on supply of labour and service. The Court held that such profit would only fall under Rule 58(1)(h) of the Maharashtra Value Added Tax Rules and not all the items under Rule 58(1)(a) to (h). The Court said that the Department cannot be allowed travel beyond the show cause notice, citing the case of Commissioner of Customs, Mumbai vs M/s. Toyo Engineering India Limited. The Court also held that such a defect cannot be cured since the jurisdictional condition required for applying the rates prescribed in the table to Rule 58(1) have not been complied with before passing the review order, leaving the jurisdiction to issue such an order untenable. The Court cited the cases of Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai, and Godrej Sara Lee Limited for invoking the jurisdiction of the Court for setting aside the impugned notices.

Micro, Small and Medium Enterprises Development Act, 2006

In Microvision Technologies Pvt Ltd Vs Union Of India, it was held that the provisions of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), specifically Section 18(4), have an overriding effect over the Arbitration and Conciliation Act, 1996. The jurisdiction for arbitration is determined based on the location of the supplier as per the MSMED Act, and not by the venue stipulated in the arbitration agreement.

In Kailash Patil v Naresh Patil, it was held that failing to submit hard copies of appeals (despite filing them online within the prescribed time) due to a bona fide belief does not warrant denying access to substantial justice. The Court observed that procedural non-compliance should not prevent a litigant from pursuing an appeal. However, the significant delay in seeking restoration (over 1,000 days) indicated a lack of diligence on the appellant's part. The Court allowed the appellant another chance to pursue the appeal, subject to strict conditions and costs.

Payment of Gratuity Act, 1972

In Mohd. Hanif. Ismail. Hakam and 32 Ors. v. Oil and Natural Gas Corporation Ltd and 2 Ors., it was held that the Oil and Natural Gas Corporation (ONGC), being under the control of the Central Government, qualifies as an 'employer' under Section 2(f)(i) of the Payment of Gratuity Act, 1972. The ruling also clarified that terms of settlement under the Goodwill Package Scheme cannot override statutory entitlements to gratuity.

Railways Act, 1989

In the case of Shri Arun Anshiram Dhotre and Ors v Union of India, the Court, relying on the judgment of Union of India Vs. Rina Devi, held that Sections 124 and Section 124A of the Railway Act, 1989 provide that compensation is payable whether or not there has been a wrongful act, neglect or fault on the part of the railway administration in the case of an accident or in the case of an ‘untoward incident’ and the only exceptions are those provided under proviso to Section 124-A. The Court also reaffirmed that Section 124A lays down strict liability or no-fault liability in case of railway accidents and that where the principle of strict liability applies, proof of negligence is not required.

Railway Protection Force Act, 1957

In Sadanand Mishra v. Union of India, the Court held that since the respondents made reasonable efforts to contact the petitioners on multiple occasions and then proceeded to continue disciplinary proceedings ex parte, it was not a violation of the principles of natural justice. It also held that disobeying a specific direction to be followed during the period of suspension would amount to negligence and cannot be termed as an ignorance of law, while upholding the suspension of the petitioners.

Real Estate (Regulation and Development) Act, 2016

In Sanvo Resorts Pvt. Ltd. & Ors v Mrs. Shital Nilesh Deshmukh & Anr., the Court held that a delay in handing over possession of flats by the appellant promoter due to delays in obtaining approvals from relevant authorities cannot be a cause for interference under Section 58 of the RERA Act, citing the case of DLF Home Developers Ltd. V/s. Capital Greens Flat Buyers Association. However, the Court, on applying Section 18 read with Section 4(2)(l)(C) and Section 11(3)(b) of the RERA Act, stated that the promoter becomes statutorily liable to pay interest if he fails to give possession in accordance with the terms of the agreement for sale and distinguished the case of Neelkamal Realtors Suburban Pvt. Ltd. V/s. Union of India & Ors on the said issue. The Court also held that the allottee has an unqualified right to claim interest under Section 18(1) of the RERA Act if the promoter fails to discharge his obligation in accordance with the terms and conditions of the agreement and cited the case of Newtech Promoters and Developers Pvt. Ltd v State of U.P in support of the same.

In the case of Dr. Yogesh Keshav Bele v Maharashtra Real Estate Regulatory Authority & Ors., it was held that a person not directly involved in a real estate project as an "allottee" or having a direct interest cannot be considered an "aggrieved person" under Section 31 of the Real Estate (Regulation and Development) Act, 2016. Locus standi for filing a complaint under RERA is limited to parties who are either allottees, directly interested in the project, or fall within the ambit of "aggrieved person" as defined by the Act.

Registration Act, 1908

In Prabhat Sadan Properties Ltd v MCGM & Ors, it was held that for assessing a transfer premium, the effective date of a document should be its execution date, not the registration date. This was based on Section 47 of the Registration Act, 1908, which stated that a "registered document operates from the time it would have commenced to operate if no registration had been required or made."

In Namdev Mahadu Jambhulkar & Ors. v State of Maharashtra, it was held that the rights established through a registered instrument and upheld by civil courts cannot be disregarded by revenue authorities. Once the validity of a sale deed conveying land is judicially determined and upheld, technical challenges based on mutation entries in revenue records should not override the substantive rights established by the registered deed.

SARFAESI Act, 2002

In Kotak Mahindra Bank Limited v. The State of Maharashtra & Ors., it was held that non-compliance by authorities with the procedure established under the SARFAESI Act for executing orders related to secured assets cannot be justified by third-party interventions. The Court emphasized that orders under Section 14 of the SARFAESI Act, once passed for taking possession of secured assets, must be executed without undue delay. Any obstruction by third parties without resorting to the appropriate legal recourse under Section 17 of the SARFAESI Act cannot be a ground for authorities to stall the execution of such orders.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Arms Act,1959

In Ganesh Bhimrav Padalkar v. State of Maharashtra and Anr., it was held that the delayed inclusion of a suspect's name in a supplementary statement, when not mentioned in the initial FIR or the primary victim's testimony, is not sufficient grounds for maintaining custody. The Court emphasized the necessity of consistent and timely identification of suspects in criminal proceedings, especially in serious crimes involving allegations under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the Arms Act.

Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013

In Vijay Choudhary v. State of Maharashtra, the delayed filing of an FIR with improvements and suppression of material facts on record was construed to be lodged with a mala fide intention to harass the petitioner. The Court cited the case of Thulia Kali v The State of Tamil Nadu and observed that the continuation of investigation in such a case lodged with a mala fide intent would be an abuse of process of law and would also contravene the settled position of the Supreme Court on the exercise of extraordinary powers by the High Court. The Court also relied on the ruling in State of Haryana and Ors v Bhajan Lal.

Specific Relief Act ,1963

In Dileep Balakrishna Nevatia v/s Ambrosia Restaurants Pvt Ltd, the Court held that proceedings under Section 6 of the Specific Relief Act are meant to be summary in nature, the object of which is to conduct an inquiry into the question as to whether the plaintiff is illegally dispossessed, otherwise than by due course of law and for affording an immediate remedy of restoration of possession. Where a person is in settled possession of property, even if such a person no longer has the right to remain on the property, such a person cannot be dispossessed except by recourse to law.

Unlawful Activities (Prevention) Act (UAPA), 1967

In Mohammed Irfan Rehmatali Shaikh v. State of Maharashtra, it was held that the statutory embargo under Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) does not act as an impediment to grant bail if the Court concludes that there are no reasonable grounds to believe that the accusations against the appellant are prima facie true.

Urban Land (Ceiling and Regulation) Act, 1976

In Jemini Pradip Salot v/s The State of Maharashtra, the Court reiterated the principle laid down in the case of Salim Alimohomed Porbanderwalla & Anr v/s State of Maharashtra & Anr, wherein the Court held that it does not stand either to reason or law that a premium can be charged on the land that is retainable (exempted) and is in ownership of and has vested in the petitioners.

In Modern Paints v/s The State of Maharashtra, the Court held that retained land within the permissible ceiling limit cannot be used to calculate a premium. Demanding a premium for retainable land is illegal, unconstitutional and unlawful. Section 20 orders can apply only as against the surplus vacant land and not to the retainable land.

Miscellaneous

In Maharashtra State Road Transport Corporation Limited Mumbai v/s Shru Arjun Dattajirao Bhosale, the case concerned the award of compensation in the case of death of a minor. The Court reiterated the principle set out in the case of CK Subramania Iyer & Ors. v/s T. Kunhukuttan Nair & Ors.,where it was held that as a general rule, parents are entitled to recover the present cash value of the prospective service of the deceased minor child and they may receive compensation for loss of pecuniary benefits reasonably expected after the child attains majority. 

In Mr. Mahesh Harsukhalal and Ors. v. Mr. Vishal Jhunjhunwalal and Anr., it was held that in determining negligence in road accidents involving pedestrians, the full liability or a high degree of negligence cannot be automatically attributed to the pedestrian. The duty of care lies significantly with the vehicle driver, who must adjust their speed and be vigilant to avoid accidents, especially in areas without pedestrian crossings. The Court also emphasized that contributory negligence requires cogent evidence and cannot be presumed merely because a pedestrian was crossing the road.

In the case of Indian Oil Corporation v Dattatray Eknath More & Ors., the Court, relying on S.P. Chengalvaraya Naidu (dead) by L.R.’s Vs. Jaganmath (dead) by L.R.s and Others, held that in order to apply the doctrine of fraud, there must be suppression of facts or documents and those facts or documents must be so important and so material that in the absence of those facts or documents no effective decision could be made, or if made, it would be patently unjust.

In The State of Maharashtra Through Addi. Chief Secretary Revenue and Forest Dept. and Anr v. Ajay Rajendra Pawar, it was held that the State's discriminatory action in selectively implementing court orders for different parties in similar situations was unjustifiable. The Court stated that the State, as a model litigant, has the obligation to implement court orders uniformly and without discrimination. The Court, thereby, emphasized the need for equality and the non-arbitrary execution of judicial decisions by State entities.

In Vinay B. Poddar v. Jayesh Pandya & Ashok Banwarilal Gupta, the Court while rejecting a review petition, held that once a court exercises its discretion in a matter, an alternate bench cannot sit in appeal to reverse the same unless the criteria for reviewing the matter are met. It is not enought to contend that material facts and documents were not considered or were misconstrued by the court in the order against which the review petition was filed, the bench added.

In Kailash Patil v. Vasant S. Jadhav & Ors., it was held that non-compliance with procedural formalities, such as the delay in filing hard copies of appeal documents, should not preclude a litigant from accessing substantive justice. The court emphasized that while adherence to procedural rules is important, it should not obstruct the pursuit of a fair hearing and justice, particularly when the initial appeal was filed within the prescribed time limit online.

In JEM Exporter v Union of India & Ors., the Court, relying on Ashishkumar Kar Vs. Central Board of Excise and Customs, held that if the appellant files an appeal in ignorance of the position that he has to file certified copies of the adjudication order, then the appellate authority has to inform the appellant about the defect by giving him an opportunity to rectify the same within the stipulated time and if the appellant is not so directed on a failure to supply a certified copy of the adjudication order, then it would be in violation of the principles of natural justice.

In Anand Prakash Mittal v/s The State of Maharashtra, the Court held that when an employee of an instrumentality of the State is sent on deputation to a subsidiary company and resumes services with the instrumentality of the State upon repatriation, he would be considered a public servant throughout the period of deputation. 

In Shrikant Studios v/s Mumbai Municipal Corporation, the Court held that a consent order can be modified only with the consent of both parties. The Court further held that even if it is an order in invitum (against a party's will), for an application for review to be maintainable, it has to meet certain criteria as laid down by the Privy Council in the case of Chhajju Ram v/s Neki & Ors.

In Dattu Shankar Dhumal v/s The Director, M/s Damani Shipping Pvt, the Court held that workers who have initially been employed in a company, and have begun working in a sister concern of that company on oral directions, will be considered employees of the sister concern if they draw salary from the sister concern, tender their resignations to the sister concern and if the sister concern is responsible for settling their dues. Workers can be considered employees of the company where they were originally employed only if they can show functional integrality between the original company and the sister company.

In Chief Executive Officer, Sangli Zilla Prishad, Sangli v/s Maruti Pandurang Patil, the Court held that in case of admission of guilt regarding the misappropriation of funds by a gramsevak, insistence upon the employer/ management to lead evidence about the allegation of misappropriation would be an empty formality. Such cases, where admission of guilt is given, do not require strict proof or corroborative evidence to be proved beyond reasonable doubt.

In Sarveshwar Logistics Services Pvt. Ltd. thou its Director v. Union of India Thou Its Joint Secretary Ministry of Law and Justice, it was held that the retrospective application of new guidelines or circulars under customs law is unjustified when considering applications made under previously prevailing rules. The Court held that the petitioner's entitlement to an exemption should be assessed based on the regulations effective at the time of application submission, not according to subsequently introduced circulars.

In UPL Limited v. The Union of India and Anr, it was held that inordinate and unexplained delays by tax authorities in adjudicating show cause notices are legally untenable and go against the principles of natural justice. The Court emphasized the necessity for show cause notices under fiscal statutes to be adjudicated within a reasonable timeframe as mandated by law.

In Allarkha Ismail v. State of Maharashtra, the Court held that issues concerning the right, title, and interest in immovable property cannot be examined in the writ jurisdiction. The Court emphasized that disputed factual questions that require investigation and scrutiny of documents fall outside the purview of its writ jurisdiction and are better suited for a substantive suit in a civil court. The Court dismissed the writ petition, noting that the petitioner is at liberty to pursue a substantive suit to resolve claims over the disputed land.

In Chandrakant Uttam Kolekar v. State of Maharashtra, it was held that grievances regarding compensation for land acquisition under the Mahalunge-Maan Preliminary Town Planning Scheme No.1 should be addressed through the established legal mechanisms at the appropriate stage, which includes arbitration proceedings after the final Scheme is notified. The petitioners’ right to contest the terms of the Scheme, including compensation, is preserved under the existing statutory framework, and therefore any challenge to the Scheme before its finalization is premature.