Tag: #BombayHighCourt

-Report by Muskan Vasaani

High Court Of Bombay while hearing the writ petition on 14th February 2023 in the case of Milind B. Jadhav & Ors. (Petitioners) Versus Usha S. Patel & Ors. (Respondents), dismissed the writ petition with exemplary costs of Rs. 25000/-

FACTS:

In the present case, the Respondents herein who were the Original Plaintiffs filed a suit against Mr Rafique Malbari (Original Defendant No. 1), Mr Bhimdas Jadhav (Original Defendant No. 2) and Mr Milind Jadhav (Original Defendant No. 3, son of Defendant no. 2and Petitioner herein) for seeking possession, non-payment of license fee and compensation concerning the room bearing chalta No. 589 (part) situated on the ground floor in Municipal House No.25 – Shambhu Building in Survey No. 1/3/3/C of village Mohone, Taluka Kalyan (herein referred to as a “suit premises”). A suit was instituted against Defendant No.2 and Defendant No.3 (Petitioner No.1 herein) because they were found to have the suit property as they were servants of Defendant No.1. Petitioners are legal heirs of deceased Defendant No.2 who expired on 18.09.2016. The Respondents herein had executed a leave and license agreement with the Original Defendant No. 1 for 33 months which expired in 2006. Defendant Nos. 2 and 3 had no connection in the suit as they were only the servants but they have trespassed into the suit property and are occupying the same since before 2006 which is not justified.

However the suit property was not vacated and the Repondents herein (Original Plaintiffs) visited the site and found that it owned Defendant No.2 and 3 i.e. Petitioner No.1 herein and that Petitioners are owners of ‘Shreenath Dairy’, run by the Petitioner No.1 and it stands immediately adjacent to the suit premises and Petitioner No.1 is carrying on business in the name of ‘Sunny Building Materials’ from the suit premises.

The suit filed against Original Defendant Nos.1 to 3 came to be decreed after a full-length trial by the Learned 5th Jt. Civil Judge Senior Division, Kalyan and the Petitioners were aggrieved and dissatisfied with the decree filed Civil Appeal along with Civil Miscellaneous Applicationseeking condonation of delay of 5 months and 23 days in filing the Appeal.

However, the Civil Miscellaneous Application was rejected by the impugned order and the Petitioners filed a Civil Writ Petition which was withdrawn by them themselves and they filed a second appeal in which a stay was granted to the Petitioners for some time but the same appeal was dismissed in the admission stage and therefore the present writ petition was filed

PETITIONER’S CONTENTIONS:

The petitioner contended before this hon’ble court that the impugned order dated 03.01.2022 be set aside and the delay in filing the Civil Appeal be condoned and Civil MiscelleaneousApplication is allowed.

RESPONDENT‘S CONTENTIONS:

The respondents contended before this Hon’ble Court that the Petitioners have no right or grounds to file this petition or appeal whatsoever in respect of the suit premises and that petitioners have not shown any sufficient cause to condone the delay and such applications are required to be dismissed with exemplary costs and the application is filed with an ulterior motive which should be dismissed with exemplary costs of Rs. 5,00,000/- and that this Court should uphold the impugned order.

JUDGEMENT:

The Hon’ble High Court of Bombay dismissed the petition along with exemplary costs on the following grounds :
• Petitioners have no title, entitlement or interest whatsoever in the suit premises. They are rank trespassers who have taken advantage of the legal system and have abused the due process of law at all stages without having been put in possession of the suit premises by the owner.
• Petitioners are owners of ‘Shreenath Dairy’, run by Petitioner No.1 and it stands immediately adjacent to the suit premises. Petitioner No.1 is carrying on business ‘Sunny Building Materials’ from the suit premises and as per the findings returned by the trial court; the possession and occupation of the suit premises is completely illegal.
• that if the delay in such cases is condoned in favour of Petitioners and if they are allowed to prosecute their appeal, it will amount to a bad representation of justice in the facts and circumstances of the present case.

READ FULL JUDGEMENT: https://bit.ly/3Xw6WWf

–Report by Tannu Dahiya

Bombay High Court on Monday i.e. 13th February 2023, granted relief to the petitioner in M/s. Lifeline Medical & General Stores Chemist and Drugs v. Assistant Municipal Commissioner Food & Drugs Administration & Licensing Authority, Maharashtra State.

Facts:

The petitioner being a chemist carries a business of General Stores of Chemist and Drugs (Medial Store/Shop) for the last 17 years and has a valid licence for the same which is renewed from time to time. On 8th June 2018, the Drug inspector of Raigar visited the shop for an inspection. An inspection report was prepared after which a show cause notice was issued in July under the Drugs and Cosmetics Act, 1940 and Rules, 1945, alleging the petitioner has violated Rules 65(2), 65(3)(1), 65(6), 65(4)(i), 65(4)(3), 65(4)(4), 65(4)(4)(ii) of the said Act. The petitioner filed for a reply but his licence was cancelled on the last date of the month. Filed an appeal before the appellate authority which had put a stay on the order. But on 26.02.2022, the appeal was partly allowed and the licence was suspended for 90 days. And hence the present appeal was filed.

Petitioner’s contentions:

Mr Kumbhar, learned counsel, stated that the orders passed by the authority are against the principles of natural justice. The provisions and exceptions of the said Act have not been considered by the respondent before passing the orders. The Petitioner has been carrying the business for the past 17 years with a valid licence and no allegations have been on record against him. Also, a reply was filed for the show cause notice and it was clearly stated that no such violations will happen in future. The petition against the order passed in 2022 is still pending before the authority and the petitioner has been suffering because of the suspension since January 2023.

Respondent’s contentions:

Mr Sawant, who learned AGP for the state, claimed that the petitioner has been carrying his business for the past 17 years without blemish and a valid licence which has been renewed from time to time. But the report made by the Inspector shows that certain drugs were sold with valid bills when the owner, Pharmacist Mr Mustafa Hanif Sirkot was not present. It was also alleged that the bills of the same were not shown to the inspector. Two day time was given to produce the bill before the authority resulting in there being some discrepancy found in the dates of the bills. The show cause notice was issued in violation of section 18(c) of the said Act and the petitioner was asked to reply within 5 days.

The reply stated that the said drugs were sold in presence of the owner, Mr Mustafa, the discrepancy found in the hills was due to the inadvertent mistake of Mr Mustafa, who by mistake forgot to mention a few dates. The copies of bills of all the informed drugs have been submitted to the Assistant Commissioner. The order of 2018 was passed after due consideration of the facts. The reason for selling drugs without a prescription was that they could be sold at high rates and could also lead to adulteration and the sale of fake drugs. Thus in violation of rule 65 and liable under the provisions of Rule 66(1) and 67(h)(1), the petitioner’s licence was cancelled.

Judgement :

The learned counsel for the petitioner pleaded that the penalty imposed by the impugned order is without any reason harsh. The petitioner has been without any livelihood since 9th January 2023. He has also expressed an unconditional apology for the discrepancy found in the hills of the drugs. He has also given an undertaking to the court that no such mistake or violation shall take place in future. This undertaking has been accepted by the court and the appeal filed by him is allowed stating that he must abide by all the rules and follow all the provisions in respect of the conduct of his business. Hence the impugned order of 2018 and the show cause notice stands quashed.

READ FULL JUDGEMENT: https://bit.ly/3Io2K6X

​​​-Report by Shivansh Pratap Singh

The case MASUDEO RAMA KUSALKAR Vs THE STATE OF MAHARASHTRA AND OTHERS dated 6 February 2023 revolves around alleged misconduct while carving out a new revenue village, namely Joshi Vasthi.

Facts:

A petition is filled by a group of villagers seeking the quashing of orders for the creation of a new revenue village, Joshi Vasthi (pop. 2000-2500) from village Limpangaon. The respondents of the case are majorly the government officers inches (tehsildar, etc) who claim no major misconduct and adherence to the law of the land while the creation of the respective village is under purview.

Applicant’s Contention:

1. The impugned notification dated 07-11-2017 issued by Additional Collector(Ahmednagar) is contrary to law and provisions of section 4 of the Maharashtra Land Revenue Code,1966 and Section 24 of the Bombay General Clauses Act.
2. Further the declarations dated 23-08-2018 & 31-08-2018 are contrary to law.
3. The Petitioner seeks issuance of the writ of certiorari to quash notifications dated 07-11-2017 & 23-08-2018.
4. Claim that no publication seeking objections were made by the respective authority before
   06-12-2017.
5. Objections made thereafter were not considered.
6. The publication of notification was not given the required publicity as stated by Section 4 of the code.
7. The land under consideration is a forest area according to the 1992 notification.
8. According to the forest act,1980 in absence of no objection from the central government the action of carving out could not have been undertaken.

Respondent’s Contention:

1. Proposal for carving out Joshi Vasthi was received in 30-01-2015.
2. The provisional notification was published on 07-11-2017 declaring the carving out of Joshi Vasthi and objections were called up to 28-11-2017, the notification was published by the govt. Gazette, notice board of Tehsil Office, Shrigonda, Talahati office, etc.
3. Objections were received, duly discussed and dismissed following the relevant provisions contemplated under Section 4(1) and 4(4) with Section 24 of the General clauses act.
4. The final decision was taken in tune with section 4(4) of the Code.

Judgement:

1. After hearing the arguments from both sides respected judge reached the conclusion that according to the provisions of sections 4 and 24 a legit publication of intention for the carving of a new village, followed by reasonable time to raise objections and consideration of objections while following the principles of natural justice are the only requirements.
2. The draft notification dated 07-11-2017 has been published in accordance to section 4(4). The objections were accordingly called on 28-11-2017.
3. Evidence points towards that required publicity to the publication of the notification was provided.
4. Objections were received, stakeholders were granted the opportunity of being heard, and an enquiry was done on the directions of the sub-divisional officer, Shrigonda.
5. All the principles of natural justice were adhered to.
6. The area covered under the proposed Joshi Vasti is already part and parcel of the village panchayat so the impugned notification has not been impeded by any provisions of the forest act or the rules.
7. The writ petition is dismissed with no order as to costs.

READ FULL JUDGEMENT: https://bit.ly/3DOVkXA

CITATION: WP/11923/2018

–Report by Shreya Gupta

The petitioner, in this case, was Masudeo s/o Rama Kusalkar and there were 8 respondents, The State of Maharashtra, The Divisional Commissioner, The Collector, The Additional Collector, The Sub-Divisional Officer, The Tahsildar, The Talathi, Bhalchandra Dattatraya Sawant. The history of the case lies in 1989 when the government of Maharashtra ordered to allot 1 acre of land to each beneficiary of the backward class.

FACTS:

The case is filed under article 226 of the Indian constitution. The government of Maharashtra allotted 1-acre land to 179 people of backward class for rehabilitation provided to some terms and conditions. The issue arose since land is a part of the revenue village Limpangion known as Joshi Vasti and was getting separated from it to become a different village. For this, the notification to raise objections was sent which caused the main dispute since it was contended that no such notification was issued.

PETITIONER’S CONTENTIONS:

According to the petitioner, the notification declared by respondent no. 4 is bad in law and contrary to section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act. The petitioner contends that there should be an issuance of a writ of certiorari to quash and set aside the notification. It was contended that the notification was not given publicity by law. He contends that the action of the respondent is arbitrary and illegal. He took the support of previous judgements like Prashant Bhausaheb Ghiramkar Vs. The state of Maharashtra reported in 2013 (6) Mh.L.J. 703 and Dr Avinash Ramkrishna Kashiwar and others Vs. The state of Maharashtra and others reported in 2015 (5) Mh.L.J. 830.

RESPONDENT’S CONTENTION:

According to the respondent’s contention, the proposal for consideration of a new revenue village with details was received. It is also contended that under section 4 (1) of the code, the collector can carry out the powers vested in the state government. They also contended that a village that has more than 300 population needs to be separated and created as a new village. They also contended that the call for objection from the public was issued, published on the notice board and a further hearing was also done. They further contended that the report from the District Superintendent of Land Record, Ahmednagar opined towards the creation of the new revenue village. They contend that they have compiled section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act.

JUDGEMENT:

The court declares that the respondents have compiled by the law, issued the notifications, heard the objections and further published it too. The court stated that “We cannot sit in the appeal and appreciate the minor procedural lapses caused during the process undertaken by competent authority towards creating separate revenue village. We are concerned with substantive compliance with the provisions keeping in mind the object sought to be achieved. We are satisfied that there is the compliance of requirements indicated under section 4 of the Code.” The court stated that the petitioner cannot derive any advantage from the previous judgements that they have mentioned for reference. The court declared that no such evidence has been brought to our notice that shows that the notification issued impeded any provisions of the Forest act or rules. The court further declared that there is no merit in the writ petition and is therefore dismissed.

READ FULL JUDGEMENT: https://bit.ly/3I3HaUZ

CITATION: WP-11923-2018-J..odt

​​​​​​​-​Report by Shivansh Pratap Singh

In the case of MR. JAY SURYAKANT KAKADE Vs MRS. ANUNAYA JAY KAKADE  dated 02.Feb.2022 a husband has filed an application for transfer of proceedings from the magistrate to the family court but the wife argues her right to appeal will be infringed.

Facts of the case:

The Applicant (Husband) seeks to transfer the proceedings filed by the wife under the Protection of Women under the Domestic Violence act,2005 before the Judicial Magistrate to the family court where he has filed a divorce petition.

Applicant’s Contention:

As the primary evidence in both cases remains the same there is the risk of conflicting judgements by two different judges. Further, the efficiency of cross-examination would be reduced and the judicial time of different courts will be wasted.

Respondent’s Contention:

Respondent disputed the applicant’s contention about conflicting judgements and the efficiency of cross-examination as misplaced. Domestic Violence Act aims to provide speedy remedy to women and such transfer will take away that right and also would be a serious infringement upon her right to appeal.

Judgement:

Amit Borkar opined that it is consistent with the court’s previous decisions to transfer the proceedings under Domestic Violence Act to the family court as the application filed under the Magistrate can be effectively tried under the family court. Further, the transfer is “Necessary” to avoid conflicting judgements. Whereas when it comes to the right to appeal, no such right is being infringed upon as the right being referred to here is just the right of revision. Further, the claim for speedy right of justice can be negated by the inversion test as not being the orbiter dicta or binding precedent.

KeyTakeaway from the judgement:

While delivering the judgement Amit Borkar sir referred to the ‘inversion test’ by Eugene Wambaugh to counter two points of the respondent, inversion test is a test to identify the ratio decidendi or obiter dicta of a judgement by treating a point to be absent and checking if the outcome/result varies. If it does vary then it’s the ratio decidendi or orbiter dicta but not if the resulting doesn’t vary. Further Orbiter Dicta is that part of the judgement that has to be treated as a binding precedent. 

READ FULL JUDGEMENT: MCA/500/2022

–Report by Mritunjay Kumar Mishra

The Bombay High Court passed that since the prosecution had failed to establish the appellant’s fault beyond reasonable doubt therefore by giving him the benefit of doubt, he was bound to be acquitted.

Facts

Both Bharat and his brother Shrikant lived in a rented apartment which belonged to Ajay Saha. He was a part of the Bhishi Scheme, along with Kalu Modi and other locals (private collection and circulation of money scheme among members). After Bhishi ended, Kalu Modi was supposed to give Bharat a lump sum payment of Rs. 51,000. The money was given to him on July 9, 2013.

Around 10:30 p.m. on July 14, 2013, Ajay Saha saw Bharat alive for the final time before going to bed. The following morning, between 6:30 and 7:00 a.m., Bharat saw smoke rising from his chamber when Bahadur Singh arrived to deliver bread to him. Ajay Sahu was promptly alerted by Bahadur Singh. Both of them entered the room quickly and noticed that Bharat’s garments were on fire. They observed that Bharat’s throat had been cut, that blood was dripping from the wound, and that a knife was lying next to him. Ajay Saga filed a police report, and the appellant was detained. In the vicinity of his home, the appellant led the police to Sulabh Sauchalaya’s bathroom, where they found cash totalling Rs. 10,300, a receipt for Rs. 300 from a clothing store, and Rs. 35,000 in one bag. They also found a wallet containing a PAN card, an identity card, a railway pass, and a Bharat Identity Card. On July 24, 2013, at the request of the appellant and in the presence of a Pancha witness, one bag containing cash in the number of Rs. 20,000 was recovered from the home of one Smt. Gupta(friend of Appellant). It also contained a sky blue shirt and blue jeans. As a result, Rs. 65,300 in cash was the total amount collected from the appellant.

Prosecution’s Contention

The appellant entered Bharat’s chamber illegally, killed him by slicing his neck with a knife, and committed a robbery of Rs. 65,300 in cash. Since Bharat had successfully finished his term as Bhishi in June 2013 and had received the Bhishi fee of Rs. 51,500 from Kalu Modi, the appellant killed Bharat to defraud him of money. As a result, the appellant had a reason to loot Bharat and kill him.

Appellant’s Contention

It is important to note that the total amount of Bhishi that Bharat received from Kalu Modi was Rs.51,500, however, the prosecution recovered and seized an amount of Rs.61,500 in the current case, making it evident that the amount of Bhishi that was received by Bharat from Kalu Modi as significantly less. The whole amount of money Bharat received and the Appellant’s total recovery does not match, and there is a total discrepancy. Additionally, it may be evident that the prosecution has not established the fact that the seized currency notes totalling Rs. 65,300 are the identical bills that purportedly disappeared from Bharat. Furthermore, it can be demonstrated that there is no proof of any testimony to the appellant’s existence, either in the company of Bharat or having violated Bharat’s property rights room. The prosecution has not questioned any of these people or witnesses. Who was in the area to locate the hiding place of the items in the public restroom? Consequently, the recovery is speculative and cannot be welcomed. Additionally, it does not aid in forming the chain of situations as having been established without a shadow of a question.

Judgment

According to the High Court, the prosecution had completely failed to establish the circumstances to prove that the Appellant is the author of the crime. Further that the prosecution had failed to prove the charges against the Appellant beyond all reasonable doubt and thus Appellant deserved the benefit of the doubt.

Hence the following order was passed: 

(i) Criminal Appeal is allowed;

(ii) Judgment passed by the lower court on 4th & 8th April 2015 is hereby quashed and set aside.

(iii) The Appellant stands acquitted of the offence punishable under Sections 302, 449, 392 r/w 397, 436 and 201 of IPC;

(iv) The Appellant be released forthwith from prison, if not required in any other case/cases. Fine if any, paid by Appellant shall be returned to Appellant.