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 July, 2022:
Finance Act, 2010
In Pr. Commissioner of Income Tax - 28 v. Crescent Construction Co., the Court dismissed the appeal and reaffirmed the lower court’s order on grounds that TDS, in the instant case, was deposited in the state exchequer before the due date of filing of return. Furthermore, the petitioner presented no facts to suggest that the deduction has been granted twice to the assessee. Hence, no disallowance is called for under Section 40 (a) (ia) of the Finance Act, 2010.
Arbitration and Conciliation Act, 1996
In Vishwajit Sud and Co. v. L & T - Stec JV Mumbai, the Court dismissed the application filed under Section 11 of the Arbitration and Conciliation Act, 1996, on grounds that such application was filed eight months after the settlement between the parties and that petitioner presented no material to incorporate such plea of undue influence, duress or coercion in respect of the settlement against the respondent.
In Rashmi Aditya Gupta v. Mangal Keshav Securities Ltd and Anr., the Court relied on Ssangyong Engineering & Construction Co Ltd v. National Highways Authority of India to hold that an arbitral award cannot be challenged on the grounds of an erroneous application of the law under Section 34 of the Arbitration and Conciliation Act, 1996. Moreover, the Court distinguished between incorrect application of the law with violation of the policy of the law to highlight that violation of policy law only referred to considerations underlying the law and not its erroneous application. In the present case, the Court rejected the appeal on the grounds that the contention of the appellants was based on an erroneous application of the law.
In Nehru Nagar Ratnadeep Co.op. Hsg. Soc. Ltd. v. S.D. Bhalerao Constructions Pvt. Ltd., the Court relying on Borivali Rajesh Co-op. Hsg. Soc. Ltd. v. Kamla Homes & Lifestyles Pvt. Ltd. & Ors. a case with a similar factual situation, held that the right to live in a safe building is part of Article 21 of the Constitution and developers, in addition to their commercial interest are also obligated to consider the dependency that the society members have on the housing requirement getting fulfilled. The Court further highlighted that any breach on the part of the developer is fatal to the collective interest of the members of the society. In the instant case, the Court took cognizance of the breach of obligations by the developer as per the Development Plan and therefore granted the petitioners interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 to avoid further addition to their suffering.
In Jagannath Parmeshwar Mills Private Limited v. Agility Logistics Private Limited, the Court held that Section 34 of the Arbitration and Conciliation Act, 1996 is not in the nature of the first appeal and, therefore, re-appreciating the evidence actually led before the arbitrator cannot take place. In the instant case, the arbitrator found the respondent entitled to specific performance of the entirety of the contract, but as the respondent had restricted his claim to a certain part of the contract, the Court held that specific performance of that certain part would take place.
In Relcon Infraprojects Limited & Anr. v. Ridhi Sidhi Sadan Unit Of Shree Ridhi Sidhi Co-Op. Hsg. Soc. Ltd. & 5 Ors., the Court relying on Girish Mulchand Mehta & Anr. v. Mahesh S. Mehta, held that the minority members of the society cannot obstruct the will and the decision of the majority members in terms of the redevelopment of the society. In the instant case, the Court unfounded the contentions of the respondents in terms of questioning the jurisdiction of the Court under Section 9 of the Arbitration and Conciliation Act, 1996, just because a notice under Section 21 referring the matter to an arbitral tribunal had been issued. The Court exercised its powers under Section 9 of the Act and asked the respondents to vacate the premises.
Foreign Exchange Management Act, 2000
In Sterlite Industries (India) Limited And 4 Ors. v. Special Director Of Enforcement, Ministry Of Finance And 3 Ors., The Court held that under Rule 7 read with Rule 4 issued on 03.05.2000 under Chapter IV of the Foreign Exchange Management Act, 2000, once a complaint is compounded by the Compounding Authority defined under Section 15 of the Act, the decision of compounding is to be brought to the notice of the Adjudicating Authority for ending the proceedings. Moreover, any order passed by the Adjudicating Authority after compounding would be invalid. In the present case, the decision of compounding was not communicated by the Compounding Authority to the Adjudicatory Authority, and consequently, a penalty was levied on the appellants. Thus, the Court set aside the order of the Adjudicatory Authority, levying a penalty on the appellants since the complaint had already been compounded.
Income Tax Act, 1961
In Rajendra R. Singh v. Assistant Commissioner of Income Tax - 9(2)(2) and 2 Ors., the Court allowed the writ filed by the petitioner and quashed the order of the respondent on grounds that the procedure followed by the respondent was violative of natural justice as the petitioner was not heard and the procedure under Section 179 of the Income Tax Act, 1961 which involves satisfaction as to the fact that the tax cannot be recovered, was not abided by. Earlier, the respondent passed an order which held the petitioner liable for the tax demand, otherwise due and payable by the company.
In Nitin Nagarkar v. Income-Tax Officer, Ward-23(2)(6), Mumbai and 3 Ors., the Court, relying on Tax Recovery Officer v. Gangadhar Vishwanath Ranade, set aside the impugned order of the respondent under Section 281 of the Income Tax Act, 1961 on grounds that the respondent did not have the jurisdiction to pass an order concerning the issue of whether the transfer was void under Section 281.
In M/s. L.K.P. Merchant Financing Ltd. v. The Dy. Commissioner of Income-Tax, Special Range, the Court set aside the order of the appellate court in favour of the respondent on grounds that since the write-off by the petitioner in lieu of bad debt was bona fide, the deduction of bad debt written off under Section 36(1)(vii) of the Income Tax Act, 1961 by the petitioner is legal.
In The Pr. Commissioner of Income Tax – 4, Pune v. Kumar Builders Consortium, the Court dismissed the application filed by the appellant on grounds that Section 80IB(10) of the Income Tax Act, 1961, under its clause ‘c’, allowed for pro rata deduction, per ineligible residential unit in regard to violation of requirements enshrined for residential units under the same clause. Clause ‘c’ defines ineligible residential units as ones with a built-up area of more than 1500 square feet and not being situated in Delhi or Mumbai.
In Greatship (India) Limited v. Assistant Commissioner Of Income Tax -5 (1)(1), Mumbai And 3 Ors., the Court held that prior intimation under Section 245 of the Income Tax Act, 1961 for the purposes of set-off or adjustment against the tax refund due is mandatory. In the present case, the income tax authorities did not intimate the assessee as per the requirements under Section 245, and thus, the Court set aside the order of the income tax authorities.
Integrated Goods and Services Act, 2017
In Vodafone Idea Limited v. The Union of India And 3 Ors., the Court held that the place of service for domestic telecom operators supplying service to foreign telecom operators (FTO) would lie outside India within the meaning of Section 13(2) of the Integrated Goods and Services Act, 2017 (IGST Act). Further, the Court highlighted that the relationship between a subscriber and an FTO is not that of principal-agent but rather of principal-principal. Thus, a subscriber located in India is not an agent of an FTO and cannot be seen as the recipient of the service provided by an Indian telecom operator. In the present case, the Court rejected the contention of the respondents that the location of service would be India since the subscribers of an FTO are its agents and thus, such service should be taxed under Section 13(3)(b) of the IGST Act, 2017 as lying within India.
Customs Act, 1962
In Pinnacle Life Science Pvt. Ltd. v. Union of India and Ors., the Court held that since Section 149 prescribes no time limit for amendment of invoices and gives no power to the Central Board of Excise & Custom (CBEC) to provide for any such time limit, the same cannot be provided for in a circular by the CBEC. In the instant case, the court allowed the appeal regarding the amendment of six shipping bills for inserting Advance Authorization details under Section 149 of the Customs Act, 1962, as the appellant did not mention such details on the GST invoices and commercial invoices due to a clerical error.
In Insight Diagnostic Oncological And Research Institute Pvt. Ltd. and Anr v. The Union of India Thru Secretary, Ministry of Finance, Dept. of Revenue and Ors., the Court held that the provisions of Section 28A, which prescribes a levy of interest on delayed payment of custom duty, do not have a retrospective effect on custom duty due before Section 28A was added to the Customs Act, 1962. Moreover, to demand interest under Section 28A there must be collusion, misrepresentation, or suppression by the person liable to pay the duty as provided under Section 28(2). In the present, the Court held that none of the two conditions were met by the customs authorities and thus, no liability to pay interest accrued to the petitioners.
In Sarla Polyester Limited v. The Union of India and Anr., the Court held that cancellation of a license under Section 58 of the Customs Act, 1962 requires that the licensee be given a reasonable opportunity of being heard, including notice of materials sought to be used against the licensee. In the present case, the Assistant Commissioner failed to provide the petitioner with all the materials sought to be used against him. Thus, the Court set aside the order of cancellation of the license on the grounds that provisions under Section 58 were mandatory and a failure to follow the provisions would vitiate the proceedings.
In Expotec International Ltd. v. The Union of India and Ors., the Court held that the benefit of drawback, refund of duty paid in the importation, under Section 74 of the Customs Act, 1962 would apply only to cases where ‘any duty has been paid’, which the Court interpreted to mean 100 per cent of the levied duty. Consequently, if any concession on payment of import duty has been obtained by the exporter at the time of importation, then such an importer would not be eligible for drawback. In the present case, the petitioners sought to rely on a notification to argue that they were eligible for concession in the levy of import duty, and that this notification did not create any qualification for drawback benefits. However, the Court interpreted Section 74 of the Customs Act, 1962 in conjunction with the notification which excluded beneficiaries to hold that exporters who had claimed import duty concessions were not eligible for drawback. Thus, the Court rejected the plea of the petitioner for exercising the benefit of drawback.
In Union of India Through The Commissioner Of Customs (Import) v. Customs and Central Excise Settlement Commission and Anr., the Court held that an order by the Settlement Commission under Section 127B of the Customs Act, 1962 would not amount to the interpretation of the classification of goods under the Customs Tariff Act, 1975 if the order is based on an admission by the person making the application before the Settlement Commission. In the present case, the Court highlighted that the petitioner had admitted that the impugned goods fell into the category of Customs Tariff Headings 97.03 and thus, could not later contest the jurisdiction of the Settlement Commission. Therefore, the Court rejected the petition for relief and upheld the impugned order of the Settlement Commission.
In The Principal Commissioner Of Customs Pune v. JSW Steel Ltd, the Court held that an officer exercising discretion in evaluating sufficient cause for a delay in the presentation of a bill of entry under Section 46 of the Customs Act, 1962 must act judiciously and not on mere technicalities. In the present case, the Court held that the delay in presenting the bill of entry by the respondent was not mala fide, a result of short landing of a part of the shipment and condonable under the second proviso to the above section. Thus, the appellants had not considered all the facts before exercising discretion under Section 46(3). Consequently, the Court upheld the order of the Customs, Excise & Service Tax Appellate Tribunal, Mumbai holding the levy of late fees by the customs officer as unwarranted.
Bombay Entertainment Act, 1923
In Santacruz Gymkhana v. The State of Maharashtra & Ors., the Court held that for any activity to constitute ‘entertainment’ under Section 2(a) of the Bombay Entertainment Act, 1923, monetary benefit and public colour must be shown. In the instant case, the installation of billiard tables by the National Sports Club of India exclusively for the benefit of its members would not constitute ‘entertainment’ and therefore, would not attract any entertainment duty under the Act. Additionally, the Court found the facts of the instant case pari materia to that of Gondwana Club v. State of Maharashtra & Ors. and thus, applied the ratio of that case to the instant case.
In The Royal Western India Turf Club Ltd. & Anr. v. The State of Maharashtra & Ors., the Court held that for a condition to be part of the definitional parameters of ‘payment for admission’ under Section 2(b) of the Bombay Entertainment Act, 1923 it should be uniformly applicable and necessary for admission only then entertainment duty can be levied upon the same under Section 3 of the said Act. In the instant case, the Court found that carrying mobile phones to the race course was not a necessity and thus, the charges levied on carrying mobile phones cannot be added to the amount of ‘payment for admission’ and therefore cannot attract any entertainment duty.
Negotiable Instruments Act, 1881
In Dilip Virumal Ahuja v. Rekha Vithal Patil and Anr., the Court upheld the acquittal of the respondent, charged under Section 138 of the Negotiable Instruments Act, 1881 on grounds that the appellant had failed to establish that the cheque in question was issued by the respondent to discharge their legally enforceable liability or debt due and payable to the appellant.
Protection of Children from Sexual Offences Act, 2012
In Popat Navasu Bendkoli v. The State of Maharashtra and Anr., the Court, relying on Ranjit Hazarika Vs. State of Assam, dismissed the appeal preferred by the appellant charged under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), on grounds that penetration of the vagina of a child would be considered an act of ‘aggravated penetrative sexual assault’ under the POCSO Act even if the hymen of the victim was intact.
In Royston Xavier Parera v. The State of Maharashtra & Anr., the Court, relying on Aman Kumar & Ors. v. State of Haryana, held that the evidence of prosecutrix in a case relating to an offence of rape will stand at a higher pedestal than an injured witness and thus, would need no corroboration. Furthermore, in the instant case, the prosecutrix in detail narrated the penetrative sexual assault by the accused and even the medical evidence on record corroborated her testimony. Therefore, as the guilt of the accused was proved beyond reasonable doubt, the Court upheld the judgement of the trial court convicting the accused under Section 6 of the POCSO Act.
In Shivaji Ramchandra Tirlotkar v. The State of Maharashtra & Anr., the Court relying on Ranjit Hazarika v. State of Assam, held that even if the doctor opines that no rape was committed and there is an absence of injury on the victim’s private parts, it is not sufficient to disregard the cogent and trustworthy evidence of the prosecution case. In the instant case, the Court relied on the testimony of the victim and even observed that the victim being an innocent child of 5 years had no reason to falsely implicate the accused. The Court, relying on the testimony of the victim, held that the accused had committed an act of ‘aggravated penetrative sexual assault’ and convicted the accused under Section 6 of the POCSO Act.
Indian Penal Code, 1860
In Rajesh Kumar Yedurajsingh Bhadoriya v. The State of Maharashtra, the Court upheld the conviction of the appellant charged under Section 302 of the Indian Penal Code, 1860, on grounds that the chain of circumstances established as a result of circumstantial evidence presented by the prosecution unerringly pointed to the guilt of the appellant and corroborated by the extra-judicial confession by the appellant.
In Mayuresh Ajit Gambhir v. The State of Maharashtra, the Court acquitted the appellant charged under Section 302 of the Indian Penal Code, 1860 on grounds that the witnesses’ testimonies were marred by omissions and contradictions and thus, the prosecution failed to establish the identity of the appellant as the assailant. This was aggravated by the non-conduction of a test identification parade to establish the identity of the accused as the assailant.
In Ramesh Waman Bodke v. The State of Maharashtra, the Court acquitted the appellant charged under Section 302 and Section 34 of the Indian Penal Code, 1860 on grounds that the prosecution was unable to provide sufficient evidence to establish sharing of common intention by the appellant with the acuused and did not examine the first witness to the incident which was essential to the prosecution’s case. This prevented the prosecution from establishing the guilt of the accused beyond reasonable doubt.
In Shankar @ Bhagirath Bachaku Zha v. The State of Maharashtra, the Court held that in light of the facts showing that the murder was committed after grave and sudden provocation and not in a premeditated manner, the accused was allowed to bring the case under Exception 1 of Section 300 of the IPC dealing with ‘culpable homicide not amounting murder.’ The Court, in the instant case, modified the judgement of the trial court and punished the accused under Section 304 of the IPC, reducing his sentence to 10 years of rigorous imprisonment.
In Samadhan Mahadeo Pawar v. The State of Maharashtra, the Court held that in cases of rape, corroboration of the complainant’s testimony was not necessary if such testimony inspired the confidence of the court. In the present case, the appellant appealed against an order of conviction under Section 376D of the Indian Penal Code, 1960 on the grounds that the testimony of the complainant had not been corroborated by the other witnesses. However, the Court rejected the contentions of the appellants and upheld the conviction under Section 376D of the IPC.
In Keda Pandit Bachhav v. The State of Maharashtra, the Court held that to establish a conviction under Section 302 of the Indian Penal Code, 1960, on the basis of circumstantial evidence, it is necessary for the prosecution to establish that all the circumstances taken together are only consistent with the hypothesis of the guilt of the accused. Moreover, the Court highlighted that the benefit of doubt should be given to the accused if a conclusive inference of guilt cannot be made. In the present case, the Court observed that the prosecution had failed to establish the presence of the accused at the scene of the offence, and the testimonies of prosecution witnesses were insufficient to conclusively establish the guilt of the accused. Consequently, the Court overturned the trial court’s order for conviction under Section 302 of the IPC.
In Nandlal Zagadu Yadav v. The State of Maharashtra, the Court held that an expert is necessary to determine the mental condition of the rape victim so as to take the defence that the victim was not in the state of mind to give her testimony. In the instant case, the Court observed that despite the fact that the victim was in a position to lodge FIR and tender evidence, neither the FIR was recorded, nor the evidence was fully recorded. In the instant case, in the absence of prosecutrix testimony and medical evidence not supporting the charge of rape, the Court acquitted the accused-appellant of charges of rape and wrongful confinement under Section 376 and Section 342 of the IPC, respectively.
Unlawful Activities Prevention Act, 1967
In Bilal Ahmed Abdul Razaq @ Bilal v. The State of Maharashtra, the Court held that a person convicted under the Unlawful Activities (Prevention) Act, 1967 can be granted bail by an appellate court if the evidence relied on by the special court is not consistent with the findings of such court. Furthermore, the appellate court should also consider the period of imprisonment already undergone by the appellant in granting the order for bail. In the present case, the Court held that the confession of the accused was not incriminatory and the call detail records of the accused were insufficient to convict the accused, Thus, the Court granted bail to the accused by also considering that he had already undergone imprisonment of 16 years.
In Satyanarayana Rani v. National Investigation Agency & Anr., the Court expounded on sub-section 5 of Section 43D of the Unlawful Activities Prevention Act,1967 and held that to prove conviction under the Act, the court has to reasonably believe that the acquisitions are ‘prima facie true.’ In the instant case, as the complicity of the accused and commission of alleged offences could not have been ‘prima facie’ proved thus, the appellant-accused could not be held liable. Additionally, the Court held that if a statement is not present in the relevant charge sheet or the supplementary charge sheet the statement cannot be relied upon by the Court.
The Code of Criminal Procedure, 1973
In Siddharth Narendra Banthia v. The State of Maharashtra and Anr, the Court held that a petition for discharge from prosecution will not be granted under Section 227 of the Code of Criminal procedure, 1973 if the prosecution is able to establish a prima facie case against the accused based on the materials and documents submitted to the court along with the FIR under Section 173 of the code. In the present case, the court observed that there was sufficient material placed by the prosecution to establish a prima facie case against the accused to sustain an arraignment of a charge under Section 376D of the IPC and thus, rejected the plea for discharge from prosecution.
Prevention of Corruption Act, 1988
In Manohar Sahadev Parab v. The State of Maharashtra, the Court held that the testimony of an independent witness is sufficient to prove demand for a bribe punishable under Section 7, Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 if such testimony is found to be trustworthy and reliable. In the present case, the appellant argued that since the complainant had passed away before the beginning of the trial, it was not possible to prove the demand for a bribe. However, negated this contention by holding the testimony of an independent witness to the demand and acceptance of a bribe, if it is trustworthy and reliable, is sufficient to convict the appellant. Thus, the Court upheld the order of conviction given by the trial court.
Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (MSEBC) Act, 2018
In Vikas Balwant Alase and Ors. v. Union of India Thr. Secretary and Ors., the Court held that the consideration of candidates from the Socially and Educationally Backward Classes (SEBC) in the Economically Weaker Section (EWS) category, midway through the selection process for the purposes of reservation in Maharashtra State Electricity Distribution Company Limited (MSEDCL) recruitment was arbitrary and impermissible, contrary to the advertisement for posts. Furthermore, the candidates who opted for the SEBC category assumed such a risk as they were aware of matters pending before the Supreme Court. The state government introduced changes to the selection process when the Hon’ble Supreme Court’s put an interim stay on the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (MSEBC) Act, 2018 which provided for reservation for the SEBC.
Maharashtra Value Added Tax Act, 2002
In United Projects v. The State of Maharashtra, the Court held that under the Maharashtra Tax Laws ( Levy, Amendment and Validation) Act 2017 read with Maharashtra Tax Laws (Levy, Amendment and Validation) Act 2019, which mandates that appeals against an order of assessment under Section 26(6B)(c) Maharashtra Value Added Tax Act, 2002 (‘the Act’) filed on or after April 15, 2017 require the deposit of 10 per cent of the impugned assessment order amount as a condition precedent for filing an appeal, the date of which the appeal is filed and not the date of the impugned assessment order, is to be considered for the cut-off date of April 15, 2017. Moreover, the Court held that the right to appeal under the Act was only a statutory right, and the State Legislature had complete competence in creating conditions for the filing of an appeal. In the present case, the petitioners argued that the relevant date for judging the applicability of Section 26(6B)(c) was the date on which the impugned assessment order was made and since, here, the assessment order had been made before April 15, 2017 there was no requirement to deposit 10 per cent of the impugned assessment order amount for filing an appeal. However, the Court negated this contention by laying down that the relevant date is the one on which the appeal is filed and not the date on which the assessment order was issued. Thus, the Court rejected the contention of the petitioner that Section 26(6B)(c) did not apply to the present case.
Foreign Trade (Development and Regulation) Act, 1992
In Smt. Meena Anand Suryadutt Bhatt v. Union of India and Anr., the Court held that if proceedings under the Foreign Trade (Development and Regulation) Act, 1992 do not comply with principles of natural justice, then any order under such proceedings would be void ab initio. In the present case, the Court highlighted that the petitioner had not been served the show-cause notice at the correct address and was not given an opportunity to represent against the show-cause notice, which constituted a violation of principles of natural justice. Thus, the Court set aside the order of the Joint Director General of Foreign Trade, Mumbai, requiring the petitioner to pay a penalty.
Maharashtra Cooperative Societies Act, 1960
In Mr. Vikram Dhondiram Raskar and Anr v. The State of Maharashtra and Ors., the Court relied on Madan Lal v. State of J&K to hold that a candidate who takes part in the selection process for a job would not be permitted to claim violations in the selection process, once such person is rejected. Moreover, any interference by the Court would require a grave violation of the selection process and not mere irregularities. In the present case, the petitioners contended that the failure to publish the answer key for the written component of the selection exam before the interview rounds vitiated the selection process. However, the Court dismissed the petition since the petitioners had only acted after their rejection, and the failure to publish the answer was only an irregularity.
Bombay High Court (Original Side Rules), 1980
In The State of Maharashtra v. Sinica Graeca Shipping Limited and Anr, the Court held that Sheriff’s Poundage under Rules 474, 475 and 476 Bombay High Court (Original Side Rules) would only be payable when the realisation or settlement was effected by the arrest made by the Sheriff. Moreover, if the parties to the dispute settled before an arrest then no poundage would be payable. In the present case, the Court held that the settlement had not been effected by the arrest of the Sheriff and thus, no poundage was due.
Code of Civil Procedure, 1908
In Manu Babu Patel v. Prakash Mohanlal Desai, Son of Shri Mohanlal L. Desai and Ors., the Court allowed the appeal against an order of Rejection of Plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 on grounds that: (1) since the previous proceedings were not conducted in conformity with the judicial procedure thus, the subsequent proceedings would not be barred by Section 12F of the Regulation Act, 1962; and (2) the suit was filed within the period of limitation.
In Kalpana Vijaysinh Savant and Anr. v. Barkha Amir Haldive @ Barkha Govind Valanju and Ors., the Court held that a party which is a signatory to a sale agreement cannot be impleaded as a necessary and proper party in a suit regarding such agreement if the agreement does not confer any right, interest, or obligation over such party. Thus, the request of the third party for impleadment under Order I Rule 10 of the Code of Civil Procedure, 1908 was denied on appeal.
In Anand Prabhakar Joshi v. Bank of Maharashtra Thr. Manager-Hrd, the Court held that there can be no review of an order passed by the Court of first review. Therefore, the second review by the petitioner would be barred under Order 47 Rule 9 of the Code of Civil Procedure. Furthermore, the Court reiterated that review is not an appeal in disguise and rehearing of the matter is impermissible in law.
In Shri. Dattatraya Bajirao Kale v. Shri. Dinkar Pandurang Pawar (Deceased Thr. Lrs) and Ors., the Court held that a court of second appeal would only interfere with the concurrent findings of the court of first instance if there is a substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, 1908. The Court observed that a substantial question of law emerges when concurrent findings are outside the scope of pleadings, based on a misreading of the law or any evidence such that no judge acting judicially could have reached such findings. In the present case, relating to the execution of a sale deed, the Court refused to interfere with the concurrent findings of the lower courts since the findings were sound and reasonable, and thus there was no substantial question within the meaning of Section 100 of the CPC.
In Ariz Kohli v. Tehzeeb Kohli, the Court held that amendment to the pleadings under Order 6 Rule 17 of CPC would be only allowed if the amendment is necessary for determination of the real question in controversy. In the instant case, the petition for restitution of conjugal rights was amended to the extent of dissolution of marriage; the Court found the amendment untenable as by no stretch it was imperative for proper adjudication, and even if the amendment were to be disallowed, it would not prejudice the interests of the petitioner as she could institute a fresh petition for dissolution of marriage. Additionally, the Court referred to Section 10 of the Family Court Act and reiterated that the procedure to be followed in a Family Court must be strictly that of a civil court with little distinction.
In USV Private Limited v. Hindustan Unilever Limited and Anr., the Court held that in a suit for the grant of an injunction in a case involving an alleged violation of intellectual property, the court, before deciding on the plea for an injunction is only required to record a ‘prima facie’ finding of similarity to grant the injunction. Furthermore, the Court highlighted that if the view of the court of first instance is not arbitrary or implausible, then the appeal against such an order would not be granted. In the present case, the court of first instance observed a prima facie similarity between the soap manufactured by the appellant and the respondent and thus granted the injunction. The Court ruled against the contention of the appellants that the initial court had not completely appreciated the facts at hand and rejected the appeal on the grounds that the view taken by the initial court was plausible and reasonable at the stage of interim relief.
Recruitment Rules, 2015 (Higher and Technical Education Department, Government of Maharashtra)
In The State of Maharashtra Thr. Secretary, Higher and Technical Edu. Dept. and Anr. v. Shri Yeshwant Maruti Patil and Ors., the Court allowed the appeal preferred by the appellants on grounds of separation of powers and that the right to promotion mandates the state to consider the employee for promotion where the statute / rules provide for the same and are not concerned with the creation of a promotional avenue in places where the legislature has not done so. Thus, the Court prevented the striking down of Rule 3 of the Recruitment Rules, 2015 notified by the Higher and Technical Education Department, Government of Maharashtra.
The Constitution of India, 1950
In Karishma Imraan Khan Mujawar @ Karishma Jahangir Hazare v. The State of Maharashtra Thr. Secretary and Ors., the Court quashed the order of the Caste Certificate Scrutiny Committee, Kolhapur and held that as per the powers enshrined under Article 226 of the Constitution of India, that the Plaintiff belongs to the Muslim Kasai community, which is a part of OBC, based on the documents presented by the Plaintiff and the Vigilance Cell’s Report. The Court also added that submission of documents of the post-independence era does not invalidate the claim of the plaintiff of belonging to a caste group and the Scrutiny Committee must assign a reason as to why the findings of Vigilance Cell should be discarded.
In Union of India Thr. Commissioner of Customs (Import) v. Bobsons Corporation, the Court, relying on Jyotendrasinhji v. S.I. Tripathi held that it is only permitted to examine the legality of the procedure followed and not the validity of the order passed. Furthermore, the Court held that while exercising its writ jurisdiction powers under Article 226, it should only be concerned with the decision-making process and not the decision.
In Union of India Thr. Secretary Ministry of Defence and Ors. v. National Commission For Scheduled Castes and Anr, the Court held that the National Commission For Scheduled Castes does not have any authority to act as an appellate body against an order passed by a disciplinary body constituted by an employer. In the present case, the petitioner approached the National Commission for Scheduled Castes for setting aside the order of a disciplinary proceeding, which the Commission granted. However, the Court set aside the order on the ground that the Commission had acted beyond the jurisdiction granted to it by Article 338 of the Constitution of India.
In Shri. Hanmant Dharamraj Kolawale v. The State Election Commission of India and Ors., the Court held that it would not interfere with the election process for local bodies once the State Election Commission has announced the election schedule unless there are exceptional reasons, such as statutory violations for interference under Article 226 of the Constitution. In the present case, the petitioners contended that the formation of ward limits was done using Google Maps, which constituted an exceptional violation. However, the Court dismissed the contention of the petitioners by observing that there was no legal prohibition on the use of Google Maps for the formation of ward limits. Consequently, the Court dismissed the petition.
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971
In Mr. Dhanraj Bhagirath Gotwal v. The State of Maharashtra and Ors., the Court held that illegal alteration by the appellant before development to increase the area of his structure does not entitle the appellant to land equal to the increased area post redevelopment. Instead, the appellant will only be entitled to the originally held area. In the instant case, since the appellant showed no evidence to support the claim of additional 60 sq. ft. space in his favour and did not raise any grievance earlier, when the plans were in the public domain, the Court disallowed his appeal filed under section 35 of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
Maharashtra Co-operative Societies Act, 1960
In Jayprakash Sahakari Griha Rachana Sanstha Mart Thr. Secretary v. The State of Maharashtra Thr. Principal Secretary and Ors., the Court directed the respondent to withdraw the show-cause notice issued on the petitioner (housing society) for non-conduction of elections under Section 77(A)(1-b) of the Maharashtra Co-operative Societies Act, 1960 on grounds that the complainant was not a member of the society. The Court, consequently, validated the decision of the petitioner to postpone the elections under Section 73 AAA of the MCS Act on account of the COVID-19 pandemic.
Maharashtra Regional and Town Planning Act, 1966
In Shri. Pundalik Ravaji Patil v. State of Maharashtra Thru Secretary, Rural Development Dept. & Ors., the Court held that if the land acquisition proceedings are not initiated within a period of two years, then the reservation made by the Development Authority shall lapse under Section 127 of the Maharashtra Regional and Town Planning Act, 1966. Moreover, the Court reiterated that the petitioner cannot be forced to accept any alternate mode of acquisition or compelled to grant any of his property rights.
Maharashtra Public Trusts Act, 1958
In Ramchandra Dev, Peth, A Trust Thr. Its Trustee v. The Ld. Joint Charity Commissioner, the Court held that if the valuation of the property is more than the ‘basic valuation register’ prepared by the state certifying the price of the immovable property, it would act as a benchmark for consideration to satisfy the respondent while granting the petitioner the right to alienate the immovable property of public trust under Section 36 of Maharashtra Public Trusts Act, 1958. Furthermore, the Court highlighted that mere recording of oral statements of local residents was insufficient to determine the market value of the land; rather, material evidence and comparable sale instances must be referred to determine the valuation of the property.
In Sanket Janardan Bhase v. The Assistant Charity Commissioner and Ors., the Court held that only being an ex-student of a school run by the public trust did not constitute ‘interest’ in the trust as per Section 2(10) of the Maharashtra Public Trusts Act, 1950. Moreover, Section 73A of the MPT Act prescribes that only a person having an ‘interest’ in a public trust under Section 2(10) can be joined as a party to a proceeding under the MPT Act. In the present case, the Court rejected the contention of the petitioners by holding that being an ex-student did not amount to an ‘interest’ in the trust as such a person was neither a ‘trustee’ nor a ‘beneficiary’ within the meaning of Section 2(10). Thus, the Court refused the application for a joinder under the MPT Act.
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
In Authorised Officer, I.D.B.I. Bank Ltd. & Ors. v. The State of Maharashtra & Ors., the Court held that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is an enabling provision restricting the powers of Additional District Magistrate to assist the secured creditors in taking possession of the secured assets against non-cooperative borrowers. Section 14 is invoked only after the defaulting borrower has failed to discharge his liability and does not provide for him to raise any objections to the process of taking possession of the secured assets.
Micro, Small and Medium Enterprises Development Act, 2006
In M/S Metaforge Engineering (I) Pvt Ltd v. Union of India & Ors., the Court held that before the Council adjudicates the issue in regards to payment under Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006, the Council must determine whether the enterprise is covered under the definition given under Section 2(n) of the Act. In the instant case, as it had not been determined whether the petitioner is a supplier of goods produced by micro or small industries, the Court set aside the order of the Council and asked it to revisit the case and first determine the nature of the enterprise.
Motor Vehicles Act, 1988
In Shri Vitthal Shankar Nanaware v. Shri Jitendra Shivaij Ambekar, the Court, relying on the decision of the Supreme Court of India in Kunda and Others V/s. National Insurance Company Ltd., Through its Manager, National Insurance Company Ltd. and Anr., held that a petition under Section 163A of the Motor Vehicles Act, 1988 can be converted into a petition under Section 166 of the MV Act in the court of first appeal. In the present case, the Court permitted the amendment of pleadings and remanded the case to the Motor Vehicles Tribunal for adjudication under Section 166.
Request For Proposal (01.12.2021). Mumbai Housing and Area Development Board
In Sagar Lookouts v. Maharashtra Housing And Area Development Authority & 2 Ors., the Court held that the definition of the term ‘bidder’ under Clause 2.5 of the Request for Proposal has to be understood in a manner to mean the person in charge of the firm despite the fact the bid is in the name of the firm. The Court further reiterated that a partnership is held to be a compendious name for its partners and that the experience of the firm in its essence, relates to the experience of the person executing the work. In the instant case, the Mumbai Housing and Area Development Board rejected the tender application of the petitioner on the basis of the firm being inexperienced without considering the experience of the Partner of the bidding firm; thus, the Court directed the respondent to reconsider the petitioner’s bid.
Mumbai Municipal Corporation Act, 1960
In Vivek V. Gawde v. Municipal Corporation Of Greater Mumbai Thr. Municipal Commissioner & Ors., the Court expounded on Section 105B of the Mumbai Municipal Corporation Act, 1960, which deals with taking possession of Corporation premises and held that no person has any locus to stall the enquiry proceedings merely on the ground that the regulations under Section 105H have not been formed by the Corporation. In the instant case, to discharge the burden from the enquiry officer and complete the statutory proceedings, the Court with the assent of both parties, formulated the points for determination in the enquiry proceedings.