Case BriefsHigh Courts

Bombay High Court: While partly allowing the appeal wherein a passenger sustained injuries in an untoward incident, Sandeep K. Shinde, J., expressed that, Railway Claim Tribunal, shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim.

Appellant’s application under Section 16 of the Railway Claims Tribunal Act, 1987, wherein compensation was claimed for injuries sustained due to an accidental fall from the train carrying passengers, but the same was rejected by the Railways Claims Tribunal. Hence the present appeal was filed.

Respondents had opposed the claim contending that, the appellant had sustained injuries due to his own act and negligence and therefore claim was not admissible in absence of “untoward incident” within the meaning of Section 123(c) of the Act of 1989.

Tribunal had observed that the appellant was not the bonafide passenger as he was carrying and possessing the valid ‘Pass’ and journey extension tickets, for want of an identity card, the season ticket could not have been held valid and therefore applicant was a passenger travelling without a ticket.

Analysis and Decision


High Court expressed that the appellant was travelling in the passenger train with a valid and proper season ticket with journey extension tickets and the said fact was not in dispute.

Whether, for want of identity card, season ticket, carried and possessed by applicant-passenger, was invalid, and as such, was not “Bonafide Passenger”?

In Court’s opinion, for more than one reason, non-production of the Identity Card alongwith the season ticket by a passenger, who had sustained injury due to accidental fall, itself would not render valid season ticket, invalid.

“Passenger producing proper season ticket without, identity card, ipso-facto, would not render season ticket, improper and/or invalid, unless, it is proved that passenger was using season ticket, that was issued in the name of another person.”

Therefore, in the opinion of the Bench, the appellant was a “bonafide passenger”.

Whether appellant had sustained injuries in “untoward incident” within the meaning of Section 123C (2) of the Railways Act, 1989?

High Court held that the finding recorded by the Tribunal that the appellant had not sustained injuries in “untoward incident”, but suffered “self-inflicted injuries”, was erroneous and therefore the same was quashed and set aside.

High Court held that the compensation sought was in respect of the injuries sustained by the appellant in an “untoward incident” and the Railway Claim Tribunal shall proceed to grant compensation to the appellants in terms of Rule 3 of the Rules, 1990, after verifying the medical evidence produced by the appellant in support of his claim. [Harish Chandra Damodar Gaikwad v. Union of India, FA No. 979 of 2009, decided on 24-5-2022]


Advocates before the Court:

Mr. Mohd. Hasain, Advocate for the appellant.

Mr. T.J. Pandian a/w. Mr. Dheer Sampat, Advocate for the respondent.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

The present writ petition was filed under Article 226 of the Constitution of India thereby taking an exception to the order passed by respondent 1 –Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal.

During the pendency of this petition, the Division Bench of this Court by order 18-2-2019, directed thus:

“5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.” 

Factual Matrix

Respondent 1 /non-applicant had passed the order (impugned in the present petition) in the proceedings instituted by respondent 2—Nalini Shah and her husband—Mahendra Shah. During the pendency of the present petition, the husband of respondent 2 died, with permission of the Court his name was deleted.

Further, respondent-4—Devang Shah was the husband of the petitioner and also the son of respondent 2 and present petitioner – Sheetal Shah was the daughter-in-law of respondent 2.

It was alleged that Sheetal Shah and her husband had made the life of Nalini Shah and Mahendra Shah miserable and there was continuous physical and mental torture/harassment to them in their old age and that too in their own house.

Respondent 1 –Tribunal had allowed the application filed by Nalini Shah and her husband and directed their son and daughter-in-law to pay maintenance, also they were directed to hand over the possession of the entire residential premises.

On being aggrieved with the above order, the present writ petition was filed.

Analysis, Law and Decision

High Court expressed that, while exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when Court finds that the observations/findings recorded by the Tribunal, while answering the issue that Sheetal Shah and Devang Shah in the said application were causing mental and physical harassment to Nalini Shah and Mahendra Shah, were made keeping in view the material placed on record.

The Bench stated that it has reservations with the direction to Sheetal Shah to pay the maintenance amount to Nalini Shah.

Section 2(a) of the Act mentions, ‘children’ include son, daughter, grandson and granddaughter and there was no reference to the daughter-in-law. Court did not find a single document showing the earnings of Sheetal Shah.

Hence, the impugned order to the extent that it directed Sheetal Shah to pay Rs 25,000 along with her husband to her in-laws could not be legally sustained. However, the direction given to Devang Shah to pay the said maintenance amount Nalini Shah was legally sustainable.

Bench confirmed the order of the Tribunal except for the direction to Sheetal Shah to pay jointly with Devang Shah maintenance of Rs 25,000.

In view of the above observations, the petition was dismissed. [Sheetal Devang Shah v. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens, 2022 SCC OnLine Bom 1068, decided on 6-5-2022]


Advocates before the Court:

Ms. Yasmin Tavaria a/w. Mr. Anand Poojary, Ms. Nikita Pawar and Mr.Bhushan Kanchan i/b. S. I. Joshi & Company for the Petitioner.

Mrs. Jyoti Chavan, AGP for Respondent No.1-State.

Mr. Vivek Kantawala a/w. Mr. Amey Patil i/b. Vivek Kantawala & Co. for Respondent No.2.

Mr. P. R. Yadav for Respondent No.4.

Mr. Umesh Birari, Sub-Divisional Officer, Mumbai Western Suburbs.

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]


Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Revati Mohite Dere and Madhav J. Jamdar, JJ., directs the State Government of Maharashtra, to consider a woman who was declared as “male” in her medical test for the non-constabulary post in the police department.

By this petition, the petitioner sought to quash and setting aside the impugned letters passed by the respondent 2 – Superintendent of Nashik and a direction to the respondent to issue a joining letter to the petitioner in connection with Nashik Rural Police Recruitment, 2018.

Factual Background

Petitioner aged 19 years had filed an application for the Nashik Rural Police Recruitment, 2018 under the Scheduled Caste reserved category. The advertisement for the said recruitment was published in 2018 and the petitioner had filed her application online. During the medical test, it appeared that the blood of the petitioner was found having “XY” Chromosomes. Later, when the report arrives, Hospital issued the letter informing the Superintendent of police that they were of the opinion that the petitioner was a “Male”.

Analysis and Decision

Calling it an extremely unfortunate case, Bench noted that the petitioner came from poor economic strata of the Society and her parents were doing sugarcane cutting work, the petitioner was not aware that she was any different and was living her social life as a girl/female.

Though the petitioner’s academic records were commendable.

Due to the petitioner’s socio-economic condition, she was not even aware that she was not a female.

The Bench stated that, no fault could be found in the petitioner, as throughout, she had pursued her career as a female and as per her she had all the female attributes.

Hence, the medical condition of the petitioner cannot detain the Court, having regard to the sympathetic stand and the course of action proposed by the State Government.

“State Government has decided to accommodate the petitioner in the Police Department, albeit, on a non-constabulary post and which the petitioner also accepts.”

Advocate General informed the Court that once the petitioner is appointed in the non-constabulary post based on her educational qualifications, she would be entitled to all the benefits, including promotions, etc. at par with other normally recruited employees.

Within a period of 2 months, the State Government will take an appropriate decision in the right earnest, sympathetically, having regard to the special facts and circumstances of the case.

Lastly, the Court held that, needless to state, the Police Department would take appropriate steps in implementing the said decision taken by the State Government as expeditiously as possible.

The Court directed that the petitioner be informed of all the developments that take place from time to time.

Matter to be listed for compliance on 25th July, 2022. [ABC v. State of Maharashtra, 2022 SCC OnLine Bom 1035, decided on 6-5-2022]


Advocates before the Court:

Mr. Vijaykumar R. Garad for the Petitioner

Mr. A. A. Kumbhakoni, Advocate General a/w Mr. P. P. Kakade, Govt. Pleader, Mr. Akshay Shinde, `B’ Panel Counsel and Mr. R. P. Kadam, A.G.P for the Respondent Nos. 1 & 2–State

Case BriefsHigh Courts

Bombay High Court: While addressing a matter with regard to a husband setting ablaze his wife, the Division Bench of Sadhana S. Jadhav and Milind N. Jadhav, JJ., made an observation with respect to dying declaration that,

It is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court.

The appellant was convicted for the offence punishable under Section 302 of the Penal Code, 1860 by the Additional Sessions Judge.

Factual Background


Appellant was married to Manisha and in the year 2009, Manisha was admitted to a hospital with a history of burn injuries.

It was disclosed by Manisha to the Police that her husband used to be always under the influence of alcohol and insisted upon her to pay money for the alcohol and if she refused to oblige, he used to assault and abuse her.

On night, when Manisha refused to give money to her husband for liquor, while sleeping the appellant was dowsing kerosene on her and in order to rescue herself, she tried to flee from the house and at that juncture, her husband lit the matchstick and threw at her, setting her ablaze.

Later she raised a hue and cry, after which her sister-in-law tried to rescue her and her husband who had fled from the house came and pretended to extinguish the flames.

In view of the above, charge sheet was filed for the offence punishable under Section 302 IPC.

Analysis, Law and Decision


High Court observed that the trial court did not refer to the history given by the patient herself.

Further, the history narrated by the patient before the doctor created a doubt in respect of the statement recorded and which was held to be the dying declaration.

“A dying declaration is by itself sufficient to convict an accused for the accusation levelled against him provided the dying declaration is found to be voluntary, truthful and hence, could inspire the confidence of the court. It is not necessary that a dying declaration shall necessarily be recorded in question and answer form or in any particular format.”

The Bench noted that various Supreme Court decisions have held that in case of multiple dying declarations/statements of the deceased there shall be no variance whatsoever.

The disclosure leading to the incident in which the deponent had died shall be consistent, cogent and corroborative. The prosecution has to pass this test by all means, as an onus is cast upon the prosecution to establish the guilt of the accused and authorship of the injury by the accused beyond reasonable doubt.

Reasonable doubt

Reasonable doubt means an explanation or a fact which would appeal to the reason of a prudent mind and a judicially conscious court, since such a statement of a deceased must inspire the confidence of the court.

High Court opined that the appellant was in custody since 2009 and deserves to be acquitted of all the charges levelled against him as the dying declaration would constrain the Court to take another possible view.

Whenever there is another possible view, it would be incumbent upon the court to take a view in favour of the accused, provided there is contemporaneous records which is in the nature of admissible evidence.

 Hence, the appeal was allowed.

Lastly, the Court appreciated the efforts taken by the Advocate Ashish Satpute, appointed to espouse the cause of the appellant. [Satish Mahadeo Kale v. State of Maharashtra, 2022 SCC OnLine Bom 1004, decided on 6-5-2022]


Advocates before the Court:

Mr. Ashish Satpute, advocate appointed for appellant.

Ms. M.M. Deshmukh, APP for State.

Legal RoundUpWeekly Rewind


TOP STORY OF THE WEEK


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’ 

In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.  

The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits. 

Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. 

Read more… 


SUPREME COURT


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases 

In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases. 

In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.  

The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:  

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.” 

Read more… 


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees’ battle  

In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out. 

Finding the report of the previous committee faulty, the Supreme Court observed, 

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.” 

Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.  

Read more… 


High Courts


Madras High Court| Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals. 

Court observed that, 

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.” 

Read more… 


Bombay High Court| Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice. 

Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.” 

Read more… 


Bombay High Court| Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one. 

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order. 

Read more… 


Delhi High Court| Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin? 

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that, 

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.” 

With regard to contempt, the Court observed that, 

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.” 

Read more… 


Legislation Updates 


IFSCA issues framework for FinTech entity in IFSCs 

The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS. 

Read more… 


SEBI (Custodian) (Amendment) Regulations, 2022 

The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996. 

The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board. 

Read more…  


Income-tax (Ninth Amendment) Rules, 2022 

On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.  

Read more … 


 

 

Case BriefsHigh Courts

Bombay High Court: Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

The wife of the deceased addressed the Chief Executive Officer of Zilla Parishad contending that she had no knowledge that her husband had applied for voluntary retirement. Further, she added that he could not sign, and somebody had filled in an application for retirement on his behalf, by way of mischief.

What was the controversy?

After the deceased was granted voluntary retirement in the backdrop of the medical opinion that he was not medically unfit, whether it would entitle petitioner 2 to compassionate appointment?

High Court took into consideration the plight of the deceased and the ignominy that he was suffering. The office colleagues of the deceased used to notice his severe medical problem and he was living a normal life since he was not able to perform any duties, he had become unwanted and undesirable.

After the deceased was relieved on 5th May, 2019, he was admitted to the hospital and passed away within 3 months in the hospital. In view of the said, the time lag after he was relieved and his death, supported the Court’s view.

The Advocate for the Zilla Parishad referred to Cause ‘B’ of Government Resolution to contend that legal representatives can be considered for compassionate appointment if the father/mother was relieved from employment due to a medical condition prior to completing the age of 50 years.

The above view, in Court’s opinion, was discriminatory and capricious.

It was clear that the deceased did not seek voluntary retirement at the stroke of superannuation, also he did not pretend to be ill or incapacitated to facilitate employment for his son.

As per the facts and circumstances of the case, he was indeed seriously ill and the neurological problem that he was suffering from, was life-threatening considering the MRI scan of his brain conducted by the neurosurgeon. His physical condition continued to deteriorate, and the entire department confirmed the view that he was incapacitated, and he was not in a condition to perform any work, even soft work.

In view of the above, the petition was partly allowed.

The following directions were issued:

  • Petitioner 2, son of the deceased be enlisted in the list of the eligible candidates for compassionate appointment, considering his representation made before he graduated.
  • His seniority in the list of eligible candidates would be from the date when he became an Engineering Graduate.
  • The Chief Executive Officer, Zilla Parishad would consider the availability of a vacancy on which the petitioner 2 could be appointed and accordingly issue an appointment order as and when such vacancy arises.

[Anita Bhujang Wagalgave v. State of Maharashtra, 2022 SCC OnLine Bom 942, decided on 12-4-2022]


Advocates before the Court:

Mr. A.D. Sonkawade, Advocate for petitioners

Ms. R.P. Gaur, AGP for respondents 1 and 2

Mr. S.S. Manale, Advocate for respondent Nos. 3 and 4

Case BriefsHigh Courts

Bombay High Court: Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

The present petition was filed for quashment of an FIR registered for the commission of an offence under Section 353 of the penal Code, 1860.

Petitioner’s Counsel submitted that now the crime was registered for the commission of an offence under Section 153-A read with 34 of the Penal Code, with Sections 37(1) and 135 of the Maharashtra Police Act.

Both the petitioners were said to be active in Social and Political Life.

Petitioners stated that they would be reciting religious verses i.e. Hanuman Chalisa in front of the personal residence of Uddhav Thackeray, who was the Chief Minister of the State of Maharashtra. The Police approached the petitioners and informed them that they should not indulge in any such activities and a Notice under Section 149 was hence issued.

In spite of the service of the notice, both the petitioners gave the statements in visual media due to which there was the apprehension of reaction in the society and the acts of the petitioners and statements resulted in a serious threat to law and order, as such action being initiated against the petitioners.

As per the report, the police officials proceeded over the effecting arrest of the petitioners, when the petitioners resisted the said act and deter the Police Officials from discharging their duties, the offence under Section 353 IPC was attracted.

Analysis and Decision

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  not only breaching the personal liberty of another person but also encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order.

Further, observing that as the second F.I.R. was registered against the Petitioners attracting of Section 353 of the Penal Code, in case the State Government was desirous of initiating any action including the action against the Petitioners in pursuant to the F.I.R. No. 506 of 2022, the Officials of the State Government shall issue 72 hours’ notice to the Petitioners before taking such action.

In view of the above discussion, a petition was dismissed. [Navneet Ravi Rana v. State of Maharashtra, WP No. 1286 of 2022, decided on 25-4-2022]


Advocates before the Court:

Mr Rizwan Merchant a/w Mr Faiz Merchant a/w Mr Faisal F. Shaikh – Advocate for the Petitioner
Spl. PP Pradip P. Gharat a/w Ms M. H. Mhatre – APP for the Respondent- State

Case BriefsHigh Courts

Bombay High Court: In a matter wherein, the parents sought eviction of their son, Rohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

The petitioners were the son and daughter-in-law of respondents 2 and 3 and assailed the order rendered by the Tribunal constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 whereby the petitioners were directed to vacate the self-acquired residential house of the respondents 2 and 3.

Petitioners’ submission was that the Act does not envisage a remedy of eviction, and the Tribunal committed a jurisdiction error in virtually treating the application under Section 5 of the Act as a suit for eviction.

Respondents contended that they had constructed a residential house from self-earning and that petitioner 1 illegally and forcibly took possession of part of the said house and was conducting himself in a manner as would pose a serious threat to the safety and security of respondents 2 and 3.

Further, the respondents submitted that if the petitioners vacate the portion illegally occupied, the said portion can be let out and the rental income would enable the respondents 2 and 3 to better maintain themselves.

Significantly, respondents 2 and 3 accused their son and daughter-in-law of physical assault and further prevented the well-wishers and other sons of respondents 2 ad 3 from entering the residential house.

On finding the real possibility of the safety and security of the aged petitioners being jeopardized, Tribunal directed eviction by the order impugned.

Analysis, Law and Decision


High Court expressed that the safety and security of the respondents 2 and 3 shall be in jeopardy unless the petitioners are evicted.

The Bench stated that the emotional and physical well-being of the aged respondents 2 and 3 could not be ensured unless the petitioners vacate the self-acquired residential house of respondent 2.

Supreme Court considered the scheme of the Act in Dr Ashwini Kumar v. Union of India, 2019 ALL SCR 155, wherein several directions were issued to make the provisions of the Act more effective and to ensure that the constitutional goal which the beneficial legislation seeks to achieve is enthused with more vigor.

High Court held that the eviction order was absolutely necessary in order to ensure the physical and emotional health and safety of the parents. [Namdeo v. Geeta, 2022 SCC OnLine Bom 914, decided on 4-4-2022]


Advocates before the Court:

Mr. Lubesh Meshram, Advocate with Mr. Sourabh Singha, Advocate for Petitioners.

Mr. N. R. Rode, AGP for Respondent 1/State.

Mr. P. S. Wathore, Advocate for Respondents 2 and 3.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

Further, the Bench added that, if by private negotiation, the lands are acquired the compensation paid cannot be the criteria to determine the market value for the claimants who do not agree to private negotiation.

Petitioner had assailed corrigendum dated 11-9-2018, under the said corrigendum, the circular dated 30-8-2019 was not made applicable to the acquisition for the Nagpur-Mumbai Express Highway Project.

Further, under the Government Resolution dated 13-8-2018, the Government had taken a decision to consider the ready reckoner as per the Maharashtra Stamp Act, 1958 for the purpose of determining the market value of the land. The said decision was sought to be escaped for the Nagpur-Mumbai Express Highway Project.

Petitioner’s counsel submitted that the respondents cannot differentiate between the projects while determining the compensation amount and same would be violative of Article 14 of the Constitution of India.

Advocate General for the State submitted that guidelines were provided for the determination of the ready reckoner rates under the Indian Stamps Act. Further, it was submitted that in case the award was passed, the petitioners have right to assail before the executive. Before the executive, the petitioner can raise all the contentions.

High Court stated that the acquisition made for Nagpur-Mumbai Express Highway is under the provisions of the Maharashtra Highway Act and if the acquisition is under the Maharashtra Highway Act, then the provisions of Section 26 to 30 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are applicable for determination of the compensation.

Section 26 of the Right to Fair Compensation Act lays down the following criteria for determination of compensation.

Bench remarked that, for determining the compensation amount, the market value, if any, specified in the Stamp Act for registration of Sale Deed and/or Agreement of Sale as the case may be in the area of the land situated has to be considered.

Powers of Executive

The Executive in absence of any provision has got powers to issue Government Resolutions, Circulars, and Administrative Instructions under Article 162 of the Constitution of India.

In case, no provision exists governing the field, then in that case, the Government Resolutions and Circulars can be issued, exercising executive powers. If a particular field is governed by the statute and/or rules, then the executive instructions has to be in conformity with the statutory provisions and the Rules. In exercise of executive power, the Executive cannot issue instructions, circumscribing the statutory provisions and the rules.

High Court held that executive instructions cannot supplant statutory provisions or the rules.

In light of the above discussion, the impugned corrigendum dated 11-9-2018 was set aside and the petitioner has a remedy to assail the award before the appropriate forum in accordance with law as may be permissible. [Radhika J. Bhalerao v. State of Maharashtra, 2022 SCC OnLine Bom 856, decided on 24-32022]


Advocates before the Court:

Mr. Nikhil Mengade with Mr. Dhaval Deshpande, Rahul Lathi, Yash Jariwala and Pranay Dave, for the Petitioners in all the Petitions.
Mr. Vijay Patil, for Respondent No.3 in WP No.3683 of 2020 and WP(St.) No.94031 of 2020.

Mr. A. A. Kumbhakoni, Advocate General with Mr. P. P. Kakade, G.P. with Mr. Akshay Shind, ‘B’ Panel Counsel with Mr. R. M. Shinde, AGP for the Respondent-State in all the Petitions.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

Question for Determination


Whether the employee can seek condonation of interruption in service to enhance the pension where the employee has qualifying service for pension?

Factual Background


The petitioners were permanent in service as teachers in Municipal Corporation. However, before permanency, there were interruptions in their service from the date of their first temporary appointments.

The Maharashtra Civil Services (Pension) Rules, 1982 were made applicable to the employees of Aurangabad Municipal Corporation.

Qualifying service is sine qua non for pension.

‘Qualifying service’ means a service that may be considered in determining whether an employee is eligible by the length of service for a pension. 

It was noted that as per Rule 30 of the Pension Rules, ten years of qualifying service is a condition precedent for the entitlement of pension. Where the employee retires on superannuation or is declared permanently incapacitated for further service, or voluntarily retires after twenty years of service, the employees’ service is to be counted for qualifying service for pension. The servant, at the time of retirement, shall hold substantively a permanent post.

Condonation of breaks in service for enhancement of pension and other retiral benefits

The appointing authority has a discretionary power to condone the interruption in service provided, the interruptions should have been caused by reasons beyond the control of the Government servant.

In view of the pension scheme, where the employee in substantive service has rendered the service less than ten years, then his previous temporary or officiating service is counted for completing the minimum ten years of service subject to the other rules and his personal service record.

Conjoint Reading Rules 30, 33, 48 and 110 of Pension Rules elucidate that the pension scheme is for the benefit of the employee, and the amount of pension is determined by the length of qualifying service.

High Court opined that, if the service of an employee at his superannuation is less than ten years, then the previous temporary or officiating service needed to be counted for the qualifying service for pension.

Bench also added that, the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of last salary drawn on the substantive permanent post.

Hence, the petitioners were eligible for pension as per the Pension Rules and not entitled to claim the condonation of the interruption in their services to enhance their pension.

In view of the above, petitions were dismissed. [Muktabai v. State of Maharashtra, 2022 SCC OnLine Bom 887, decided on 22-4-2022]


Advocates before the Court:

Mr. D.R. Irale Patil, Advocate for the Petitioners.

Ms. R.P. Gaur, AGP for respondent/State.

Mr. A.P. Bhandari, Advocate for Respondent Nos.2 &

Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Factual Background

A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.

It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.

Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.

Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.

Analysis and Decision

High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.

In a suit for partition, the heads of all the branches are the necessary parties.

Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.

Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.

Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.

There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.

In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]


Advocates before the Court:

Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar

Advocate for Respondents1 to 5: Mr. S.V. Dixit

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Interesting Stories of the Week


[Media Trial] Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials? Ker HC elucidates

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecasts7.

Reports/telecast having the effect of prejudicing mankind against the parties and the court before the case is heard clearly interferes with the course of justice.

Read more here: https://bit.ly/37DrXKX


Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period? Del HC unfolds

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

Read more here: https://bit.ly/3v5iYen


Can children claim any amount under the head of permanent alimony under S. 25 of Hindu Marriage Act? Ker HC explains

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Read more here: https://bit.ly/3EAH18c


Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation: Bom HC

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

Read more here: https://www.scconline.com/blog/post/2022/04/16/child-marriages/


Past pregnancy can be determined on account of permanent changes in the body of a woman: Bom HC

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

Read more here: https://bit.ly/3v4cuwb


Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society? Bom HC addresses

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigationG.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

Read more here: https://bit.ly/3ED6cHa


Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences: Madhya Pradesh HC

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

Read more here: https://bit.ly/3Os1ocf


Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations? Bom HC throws light

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Read more here: https://bit.ly/3ECAiuk


Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC: Del HC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Read more here: https://bit.ly/37DrUPh


When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire? Del HC answers

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

Read more here: https://bit.ly/3v4AvDq


Sudden cancellation of rooms booked for daughter’s marriage 3 months prior on account of maintenance: Is it an acceptable reason? Can consumers claim compensation? NCDRC explains

“The memories of marriage ceremonies are lifetime events in the life of bride and bridegroom and their family members to make their moments memorable. In our country, certainly, it is not an easy task for the parents to arrange their daughter’s marriage in a five-star hotel in place like Jaipur or any big cities. All of sudden cancellation of booking about 3 months prior to the date of marriage on account of maintenance is not acceptable reason.”

Read more here: https://bit.ly/3K2xpnH

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

The applicant had circulated the matter for urgent listing and when the Court raised a query about whether there was any urgency as to take the matter out of turn, the applicant’s counsel, Anjali Patil went totally off the tangent and made allegations that this Court was giving priority to certain matters and to certain advocates and this insinuated that the Court was not fair and biased.

Further, it was also complained by the counsel that the litigants do not get justice from the Court.

She threatened that she would lodge a complaint before the Chief Justice about conduct of this Court and further sought time to place the facts on record on an affidavit.

“Advocate has every right to protect interest of his/her clients. An advocate is answerable to his/her clients and the frustration of an advocate when the matter gets adjourned for whatsoever reason or does not reach the board is understandable.”

High Court remarked that, Anjali Patil, Advocate for the applicant grossly overstepped the limits of propriety when she made imputations of partiality and unfairness in the open Court. Her conduct was highly unprofessional and unbecoming of an advocate.

Lastly, the Bench stated that,

“It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.”

[Dipak Kalicharan Kanojiya v. State of Maharashtra, 2022 SCC OnLine Bom 872, decided on 19-4-2022]


Advocates before the Court:

Ms. Anjali Patil i/b. Nouman Shaikh for the Applicant.

Mr. S.H. Yadav, APP for the State.

Case BriefsHigh Courts

Bombay High Court: In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Husband has preferred the second appeal who had filed a petition for divorce under Sections 13 (1) (i-a) and 13 (1) (i-b) of the Hindu Marriage Act, 1955. The wife sought enhancement of maintenance in another second appeal.

Factual Background


It was stated that the wife never cohabited with the husband peacefully. The wife later started insulting his relations and never used to discharge the daily chores and started going to the parental home clandestinely.

The wife filed various proceedings against the husband and his relatives, after which the husband filed a proceeding for restitution of conjugal rights, but she opposed it and the same was dismissed. She even caused him to be arrested in a maintenance proceeding and after which he prayed for the dissolution of marriage on the ground of cruelty and desertion.

Trial Court decided that the wife had subjected him to cruelty and even deserted him without sufficient cause, hence dissolved the marriage. In fact, the proceeding of enhancement of maintenance was dismissed to the extent of the wife.

Aggrieved with the above, appeals were before the District Court, wherein the Court disagreed with Trial Court’s decision. Though the District Court granted some enhanced maintenance to the daughter but confirmed the trial Court’s decision with regard to refusing maintenance to the wife.

Analysis, Law and Decision


High Court noted that except for the highly interested testimonies of the husband and his brother there was no corroboration about any behaviour of the wife while she was cohabiting with them in the matrimonial home much less to demonstrate that she had treated the husband and his relations with cruelty.

Though the Bench observed that,

“…no strict proof of all these facts and circumstances can be insisted for since it is a matrimonial dispute happening in the four walls of the matrimonial home.”

High Court added to the above analysis that,

Filing of a maintenance proceeding, a criminal case for harassment cannot per se be said to be sufficient to jump to a conclusion that by filing such proceedings she was intending to harass the husband and his relations.

Elaborating further, the Bench also stated that merely because the complaint filed by the wife was dismissed, no inference is deducible of it being false and fictitious.

In spite of allowing all the applications for production of additional evidence under Order XLI Rule 27 the husband has been unable to demonstrate and justify the ground of cruelty, a conclusion drawn by the trial court which apparently was not founded on sufficient and cogent evidence.

Lastly, the Bench held that the decision of the trial court and the lower appellate court refusing to enhance maintenance to the wife are quashed and set aside. That suit be remanded to the trial court for decision afresh to the extent of the wife.[Vasant Punju Chavan v. Sarala Vasant Chavan, 2022 SCC OnLine Bom 804, decided on 13-4-2022]


Advocates before the Court:

Advocate for Appellant : Mr. Chandrakant P. Patil h/f. Mr. Paresh B. Patil

Advocate for Respondent: Mr. Girish S. Rane

Case BriefsHigh Courts

Bombay High Court: Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

Factual Background


The petitioner was directly elected Sarpanch of the Gram Panchayat and a no-confidence motion was passed against him by the members of the Gram Panchayat.

By the present petition, the petitioner assailed the vires of Section 35(1A) of the Maharashtra Village Gram Panchayat Act, 1959 to the extent of giving authority to the members of the Gram Panchayat to move no-confidence motion against directly elected Sarpanch.

Analysis, Law and Decision


High Court observed that the statutory provisions can be challenged on two counts:

  1. The legislature lacks the authority and power to frame the provision
  2. The provision is arbitrary, irrational and does not have rational nexus with the object in view and thereby violative of the Article 14 of the Constitution of India.

In the instant case, the legislative powers of the State were not in question,

State possesses the legislative powers to enact the provisions. 

The only challenge was on the ground that the said provision was arbitrary and violative of Article 14 of the Constitution.

The Village Panchayat Act casts additional duty/responsibilities upon the Sarpanch. If the Sarpanch fails to convene without sufficient cause the meetings of the Panchayat in any financial year according to rules prescribed in that behalf, he shall be disqualified from continuing as a Sarpanch for remainder period of the term as provided under Section 36 of the Village Panchayat Act.

Further, the panchayat would include the elected members so also Sarpanch and Up-Sarpanch though directly elected.  The decisions have to be arrived at by the Panchayat for the betterment of the villagers.

The Bench remarked that, if the sarpanch fails to perform his function and/or acts in a manner detrimental to the interest of the Panchayat and villagers or is guilty of such acts of omission or commission, so as to affect the functioning of the panchayat, then the members certainly would be justified in bringing about no-confidence motion against him.

The Village Panchayat Act does not make distinction in the nature of duties, powers, functions and responsibility of Sarpanch on the basis of he being elected by the villagers or by the members of the Panchayat.

High Court noted that for a directly elected Sarpanch further protection is provided that motion of No-Confidence is to be passed by 2/3rd members and further the said no-confidence motion is to be ratified before the Gram Sabha by the secret ballot. 

In Court’s opinion, if the villagers in the Gram Sabha do not ratify the no confidence motion passed by the members of the Panchayat the no-confidence motion would fail. The executive power vests with the Gram Sabha viz villagers.

While concluding the matter, Bench stated that the Village Panchayat Act has provided proper check and balance for passing a no-confidence motion against a directly elected Sarpanch and the said provision is rational, reasonable and does not suffer from vice of arbitrariness ergo not violative of the Article 14 of the Constitution of India.

In view of the above, petition was dismissed. [Ashruba Namdeo Kharmate v. State of Maharashtra, 2022 SCC OnLine Bom 840, decided on 11-3-2022]


Advocates before the Court:

Advocate for Petitioner: Mr S.S. Thombre Incharge G.P.

For Respondents. 1 to 4 : Mr D.R. Kale

Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Case BriefsHigh Courts

Bombay High Court: Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigation, G.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

A redevelopment of a 50-year-old dilapidated building of respondent 1 Co-operative Housing Society and the obstruction for such redevelopment by respondents 2 to 4 concerning their four units was the subject matter of the present proceedings filed under Section 9 of the Arbitration and Conciliation Act 1996.

Out of 30 members, 26 members have already vacated the society.

Society considering the dangerous condition of the building had taken up the issue of the urgent need for the redevelopment of the building. Further, the Society took steps to find out a suitable developer. An ‘Annual General Meeting’ was convened wherein by majority of the members it was resolved to appoint the petitioner as the developer.

Thereafter, a further Annual General Meeting of the Society was held in the presence of the officers of Maharashtra Housing Area Development Authority (MHADA). In such meeting, a decision was taken to appoint the petitioner as a developer to undertake the redevelopment of the Society’s premises, was confirmed.

Later, a Development Agreement was executed between the petitioner and the Society. Being appointed as a developer the petitioner, took steps so that the redevelopment work could commence.

Respondents 2,3 and 4 vacated and /or obstructed the redevelopment. They caused hurdles and impediments to the redevelopment work which according to the petitioner and the society caused serious prejudice to the members who had already vacated and who were eagerly awaiting the redevelopment work.

City Civil Court granted a temporary injunction restraining the society and the petitioner in taking any further steps qua the redevelopment of the Society’s building and from disturbing respondent 2’s possession.

Analysis, Law and Decision


Settled Position of Law

The minority members cannot act against the will of the of the majority members of the society and obstruct the redevelopment.

High Court observed that respondents 2 to 4 cannot take a position opposing the redevelopment, which was for the beneficial interest of all the members of the society. They cannot cause suffering to the other members who have already vacated.

“…cannot foist a delay on the petitioner and the Society in commencement of the redevelopment work resulting in the project costs being increased every passing day which would be immensely prejudicial to the petitioner as also the society.”

Further, the Bench added that,

“Respondents no 2 to 4 appear to be carrying an approach that as their residential units in the redevelopment are certainly secured, however the situation of the building going for redevelopment can be exploited to coerce the society and the petitioner for something, which prima facie appears to be, is beyond their normal entitlement. Such an approach is deleterious and detrimental to the majority members of the Society.”

Elaborating further, the High Court noted that, the redevelopment needs to proceed in a manner as agreed between the Society and the Developer and as per the sanction/ approval of the majority members.

In Court’s opinion, it is high time that the members realise that while they raise their grievances, such grievances are really genuine and not of a nature which would unwarrantedly obstruct and delay the proposed redevelopment.

“There needs to be a safeguard against unscrupulous persons who raised frivolous grievances. If such obstructing persons/members fail in proceedings, they would be accountable to the Society for the delay they are causing by such obstructive approach, based on the principle that once a person becomes a member he loses his individuality and has no independent rights except those given to him by the statute and the bye-laws.”

Respondents 2,3 and 4 had already adopted legal proceedings against the Society and the petitioner/developer.

In view of the above discussion, respondents 2,3 and 4 had no right to delay, defeat and prejudice the redevelopment by not vacating their respective units. The petitioner made out a strong prima facie case. [Choice Developers v. Pantnagar Pearl CHS Ltd., 2022 SCC OnLine Bom 786, decided on 13-4-2022]


Advocates before the Court:

Mr. Rajiv Singh a/w. Omprakash Jha, Basu, Gaurav i/b. The Law Point for the petitioner.

Mr. Siddharth a/w. Garima Mehrotra for respondent no. 1-Society.

Mr. A.M. Saraogi for respondent nos. 2 and 4.

Mr. S.L. Mhatre for respondent no. 3. 

Case BriefsHigh Courts

Bombay High Court: While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

An order of the Special Court (POCSO) had been challenged whereby the application for discharge came to be rejected by the Special Court.

Factual Matrix

Informant aged 17 years got acquainted with accused who was residing in the area of Christ Church and friendship blossomed into love. The accused promised to marry her and later called her to his house and demanded sexual favour from her.

In view of the promise of marriage, the informant consented to sexual intercourse and the said act was repeated multiple times. In fact, every time she consented to sexual intercourse only for the reason that the accused had promised to marry her. Later, she realized that she was pregnant.

When the mother of the informant realized that the applicant was pregnant, she aborted her foetus and on the said allegations, an FIR against the applicant and accused was filed.

Analysis and Decision

High Court noted that under Section 227 of the Code of Criminal procedure a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceedings against the accused he must discharge the accused.

“For framing charge mere suspicion is not enough.”

The applicant is accused of committing offence under Sections 315 and 316 of the Penal Code, 1860.

Ingredients of Section 315 of the IPC are as under:

(i) Woman must be pregnant.

(ii) Before the birth of any child the accused does any act

with the intention of preventing that child from being born alive or causing it to die after its birth.

(iii) Such act must not be done in good faith for the purpose of saving the life of the mother.

In terms of Section 316 IPC such an act is treated as amounting to culpable homicide.

The applicant was Doctor by profession and according to him he was a Child Specialist and possessed the certificate under the Bombay Nursing Home Registration Act, 1949 authorizing him to run a nursing and maternity home.

Therefore, trial court was justified in holding that the applicant was authorized to run a nursing home and maternity home.

As per the record of medical examination, the hymen of the victim was ruptured.

The Bench also noted that the past pregnancy can be determined on account of permanent changes in the body of a woman, in fact the mother of the victim stated that she was pregnant of six months.

The Court stated that, there was a delay of more than 1 year in lodging the FIR. However, the aspect of delay could be considered during trial. In such cases, women generally do not come forward to lodge a report soon after the incident.

“…victim was less than 17 years when the intercourse happened. After her alleged termination of pregnancy, she attained majority.”

Hence, even at the prima facie stage it could be said that delay was properly explained, and Trial Court did not commit any error in dismissing the application for discharge of the applicant. [Balwantrao Haridasrao Bhise v. State of Maharashtra, 2022 SCC OnLine Bom 828, decided on 7-4-2022]


Advocates before the Court:

Shri. Sudarshan J. Salunke, Advocate for the applicant Shri. S. D. Ghayal, APP for the respondent/State

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

The applicant was apprehending his arrest for the offence punishable under Sections 376 of the Penal Code, 1860 read with Sections 9, 10, 11 of Prohibition of Child Marriage Act and Sections 3 and 4 of the Protection of Children from the Sexual Offences Act (POCSO).

Analysis and Decision

High Court observed that the informant was 17 years old at the time of lodging the FIR.

According to the informant, at the time of settlement of marriage, her paternal uncle, mother-in-law, father-in-law and brother-in-law were present. Except for brother-in-law, all the persons referred to above are accused persons in this case.

The applicant appeared to be aged 27 years at that time whereas the informant would be aged around 16 years at the time of marriage. Though the applicant stated that at the time of the marriage, it was posed to him that the informant was 18 years of age.

The Bench stated that since the applicant was married to the informant, and she had not resisted or whatever sexual intercourse between them was with consent or voluntary.

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation.

Court added that the persons cannot be allowed to go away by putting a defence that they had taken the precaution and in fact what was represented, was different at the time of settlement of marriage.

Lastly, the Bench held that when the offences alleged against the applicant involves a social problem, this Court was not inclined to use the extraordinary discretionary relief under Section 438 of the Code of Criminal Procedure in favour of the applicant. [Trimbak v. State of Maharashtra, Anticipatory Bail Application No. 203 of 2022, decided on 12-4-2022]


Advocates before the Court:

Mr. Rahul R. Karpe, Advocate for the applicant

Mr.A.M. Phule, A.P.P. for Respondent No.1 – State. Mr.S.S. Gangakhedkar Advocate h/f. Mr. S.D. Munde Advocate for Respondent No.2