Hot Off The PressNews

Supreme Court: Admitting the petition against the order giving relief to the directors of the companies struck off by the Registrar of Companies last year, Supreme Court stayed Bombay High Court’s order on the special leave petition filed by the Ministry of Corporate Affairs.

In accordance to the stated order of the Bombay High Court, the companies’ directors who had been disqualified by the Ministry of Corporate Affairs (MCA) no longer stood to be disqualified as had been directed to the Registrar of Companies.

Further, if any other High Court had issued any such order as that of the Bombay High Court, then all of those similar orders would stand stayed in around 2000 cases.

It is pertinent to note that in September last year the Ministry of Corporate Affairs had disqualified more than 3 lakh directors of various companies that failed to file financial statements and annual returns for 3 consecutive years.


Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India, appointed  S/Shri Justices  (I) Prakash Deu Naik, (ii) Makarand Subhash Karnik, (iii) Smt. Swapna Sanjiv Joshi, (iv) Kishor Kalesh  Sonawane,  (v) Sangitrao  Shamrao  Patil and (vi) Kumari  Nutan D. Sardessai, Additional Judges of the Bombay High Court, to be Judges of the Bombay High Court with effect from the date they assume  charge of their offices.

Ministry   of Law  and  Justice

Case BriefsHigh Courts

Bombay High Court: Allowing petition filed by member of a political party challenging revocation of his arms license by the Police Commissioner, the Division Bench of Naresh H. Patil and Prakash D. Naik JJ. held that revocation of arms license for the security of public peace or for public safety under Sec. 17(3)(b) of the Arms Acts, 1959 requires more material than a mere registration of criminal case and cannot be exercised lightly in an arbitrary manner.

The counsel for the petition pleaded that there had been no incidence of misuse of the weapon and no criminal action against the petitioner had arisen in last ten years during the continuation of the license. The show-cause and the order for revocation erroneous and did not reflect subjective satisfaction. It was contended on behalf of the respondent authorities that the criminal records had been looked into when report was required for All India license to the petitioner and when the inquiry revealed a number of cases in the criminal record, the authorities issued a show-cause notice and subsequently revoked the license.

While passing the order, the Court examined  Sec. 13 and 17 of the Arms Act relating to grant and revocation of license and held that the Licensing authority can revoke a license under Sec 17(3)(b) on being subjectively satisfied that continuation of the license endangers public peace and security. However, in the present case, there had been no incidence of misuse of the weapon and the authorities lacked enough material to pass an order for revocation. The authority is required to record the circumstances under which the possession of arms license was contrary to provision of Section 17 of Arms Act, and mere registration of criminal case would not attract the provision. Therefore, the Court passed an order quashing the order of revocation by Commissioner of Police and the order passed in appeal by the Home Ministry of the State Government. The Court  also directed Commissioner of Police, Pune to consider whether any ground enumerated under Section 17(b) of the Arms Act, 1959 for cancelling the Arms licence granted to the petitioner still exists . In case no such circumstances exist, the Court directed to renew Petitioner’s arms license. [Ajay Jayawant Bhosale v. Commissioner of Police, Pune and State of Maharashtra 2016 SCC OnLine Bom 5019, decided on 15 July, 2016]

Case BriefsHigh Courts

Bombay High Court: While deciding an appeal against order of the Trial Court, imposing an injunction on feeding of birds resulting in nuisance, the single judge bench of R. M. Savant J., reiterated the principle that, a person cannot use his personal premises for causing nuisance to his neighbours and other residents and held that the order, did not call for any interference as it was based on well settled principle.

The plaintiffs and the defendants were the residents in an apartment of residential society in Mumbai. The defendants regularly fed birds from their balcony which resulted in nuisance on account of the filth created by the birds, affecting the plaintiffs along with other members of the society, and any attempt of resolving the issue amicably had failed. In the matter before the Trial Court, the defendants had questioned the jurisdiction of Court in deciding the matter under the Civil Procedure Code and the Maharashtra Co-operative Societies Act, 1980 and had filed a writ petition for the same.

Having examined the photographs and correspondence put before the Court, it was held that the acts of the defendants formed a prima facie case of nuisance. The Court also observed that order of the trial court, for removable of the metal tray used for feeding the birds was incidental to the relief sought by the plaintiffs, Further, the delay in filing the suit had not created any right in favour of the defendants and there was nothing of record to question the conduct of the plaintiffs. It was held by the Court that the matter of jurisdiction would only be decided in the writ petition filed by the defendants. The order of the trial court, being based on well settled principles for granting temporary injunction, did not call for any interference, as the use of personal premises for causing nuisance cannot be permitted. Therefore, the appeal from the order was dismissed. [Jigeesha Thakore v. Dilip Sumanlal Shah, 2016 SCC OnLine Bom 4785, decided on 12/07/2016a

Case BriefsHigh Courts

Bombay High Court: Making observations in the Writ Petition filed before the court, as to the conduct of accused and subsequent circumstances, which had fortified the facts of the First Information Report, the Division Bench of Naresh H. Patil and Prakash D. Naik JJ. declined the prayer for quashing of the FIR. The FIR in question was filed by Mehjaben Abbas Khan against Mohd. Faizan Amir Khan under Section 376 and 420 of the Penal Code, 1860. The petitioner who is the accused named in the FIR had sought to quash the FIR on grounds that the parties have amicably settled the dispute.

The facts of the case showed that the accused had induced the complainant to have physical relationship with a false promise of marriage while they lived together in a rented place in Mumbai. He had no intention of marrying her and had left for Uttar Pradesh, his native home, without her knowledge. Further, he even had refused to fulfill his promise of marriage to the complainant.

It was also noted that after the FIR was registered on 2.02.2016, the accused was not available for investigation and had been absconding. It was only after realizing that the FIR had been registered against him and the investigating machinery was looking for him, he came to Mumbai and purportedly solemnised the marriage on 29.04.2016. The Court even noted that the present petition had been filed just the following day i.e. on 30.04.2016 along with the affidavit by complainant giving consent for quashing the FIR.

The Court held that the approach of the accused had been suspicious and though the accused and complainant had solemnised the marriage, it is not inclined to quash the FIR. Upholding the decision of the Supreme Court in Gian Singh v. State of Punjab (2012) 10 SCC 303, the Court held that in respect of serious offences like murder, rape, dacoity etc. and other offences of moral turpitude, “the settlement between the offender and the victim can have no legal sanction at all.”. Therefore, having considered the factual aspects of the FIR and the law laid down by the Apex Court, the conduct of the accused and the subsequent events formed sufficient ground to decline the prayer made in the petition. Hence, the Court dismissed the petition with no order as to costs. [Mohammad Faizan Amir Khan v. State of Maharashtra, 2016 SCC OnLine Bom 5020, Decided on: July 5, 2016]

Case BriefsHigh Courts

Bombay High Court:  Providing major relief to the defendants in the case of infringement of registered trade mark and/or copyright as also passing-off, the Court held that there no similarity found upon the rival logos and also the rival logos are found to be absolutely different and/or distinct and/or dissimilar. Therefore, Plaintiff not held entitled to claim any relief on this ground.

 In the present case, the Plaintiff claimed injunctive reliefs on the basis of infringement of the Plaintiff’s registered trade marks, infringement of copyright and passing off, on the ground that the logo of the Defendant is deceptively similar to the Plaintiff’s registered trade marks consisting of a distinctive logo.

The Plaintiffs who were represented by Dr. V.V. Tulzapurkar, Senior Advocate, contended that the Plaintiff ‘s logo is a well-known trade mark within the meaning of the Trade Marks Act, 1999 therefore, the Plaintiff is entitled to the reliefs of infringement not only in respect of goods falling in Classes in which the Plaintiff’s logo is registered, but also in respect of goods falling in other classes in respect of which the Defendant is using and/or is intending to use its impugned logo. On the other side, the Defendants who were represented by Mr. Rashmin Khandekar (Solomon & Roy) contended that for considering the question of infringement, it is necessary to consider whether the impugned logo of the Defendant is deceptively similar to the Plaintiff’s logo. The impugned logo of Defendant symbolizes water i.e. the industry in which the Defendant operates, the said being treatment of waste-water, and the same is completely different in comparison to the Plaintiff’s logo. The idea conveyed by the Defendant’s logo is the anti-thesis of the idea conveyed by the logo of the Plaintiff. In this case, even the idea conveyed by the rival logos is ex-facie entirely distinct and/or different. The Defendants further contended that Plaintiff is seeking a monopoly on a curve of virtually every shape and/or size and/or dimension and/or design and/or artistic work, which is clearly impermissible. The defendants while relying on Khoday Distilleries Ltd. vs. Scotch Whisky Association (2008) 10 SCC 723 said that it is trite law that to decide the question of deceptive similarity, the nature and kind of customer who is likely to buy, as also other surrounding circumstances, play an important factor.

After perusal of the arguments advanced by Plaintiff and Defendant, the Court in agreement with the Defendant’s submission said that such convoluted mode of comparison by the Plaintiff’s cannot be permitted. No average man with imperfect recollection is going to look at the ‘rotated’ mark of the Plaintiff and be led to believe that the inverted or reversed or mirror image of such ‘rotated’ logo is deceptively similar to the Defendant’s logo, so as to cause confusion. The Court further said that this is apparent from the naked eye itself that there is no question of any confusion and/or deception being caused on account of the use of the rival logos. In view thereof, the balance of convenience is in fact in favour of the Defendant and against the Plaintiff. [Reliance Industries Ltd v. Concord Enviro Systems Pvt. Ltd., 2016 SCC OnLine Bom 4557, decided on 30th June, 2016]

Case BriefsHigh Courts

Bombay High Court: The Court, consisting of V.M. Kanade and M.S. Sonak, JJ stayed the retrospective applicability of the Payment of Bonus (Amendment) Act, 2015, as provided by Section 1 sub-clause (2)  of the said Central Act, bearing in mind similar stays operative by the judgments of the Karnataka High Court (see post here), the Allahabad High Court (see post here) and Kerala High Court (see post here).  The Court decreed that no coercive steps would be taken to recover amounts due prior to 31st March 2016 from Petitioners Tech Mahindra, who were represented by Darius Khambatta, under instructions from Khaitan and Co. It must be noted that these amounts became formally due after change in Section 12 (calculation of  bonus with regard to certain employees), whereupon if salary or wage of employee exceeded Rs. 7000/- or the minimum wage for the scheduled employment, as fixed by the appropriate Government, the calculation is to be made as percentage of Rs. 7000/- or such minimum wage, whichever is higher.. The earlier threshold was set to Rs. 3500/-. [Tech Mahindra v. Union of India, 2016 SCC OnLine Bom 4380, order dated 13-06-2015]

Case BriefsHigh Courts

Bombay High Court: In the present case, the Petitioner, an erstwhile teacher at KV Aurangabad Cantt. was subject to termination by the Kendriya Vidyalaya Sanghatan on charges of moral turpitude involving sexual misconduct with certain female students in the 4th Standard, against which he appealed to the Central Administrative Tribunal. The Writ Petition seeking to impugn the CAT’s decision dated 8th May 2013 was placed before a bench comprising of SS Shinde and VK Jadhav, JJ, who affirmed the termination order.

It was argued on the Petitioner’s behalf that principles of natural justice had been violated by not giving him opportunity to be heard at various stages of the enquiry instituted against him, that he had not been given access to the statements and complaints of the students, that the report was not fair etc. Article 81 B of the Education Code of Kendriya Vidyalaya was contended to be ultra vires to Article 14 of the Constitution on grounds of not tendering sufficient opportunity to the delinquent and of  providing arbitrary power to the Authority.

The Court refused to accept any of Petitioner’s contentions. Insofar as Article 81 B of the Education Code provides for an extension of Central Civil Services (Classification, Control and Appeal) Rules, 1965, it also empowers the Commissioner to terminate the services of an employee guilty of sexual misconduct, if, after a summary enquiry, his guilt is prima facie evident. This could be effected by three months’ pay in lieu of notice, for permanent employees, which was done in the instant case. The Court approvingly cited Avinash Nagra v. Navodaya Vidyalaya Samiti (1997) 2 SCC 534, and noted that two safeguards are ensured under the rules devised, which are: the record of reasons for the decision to not proceed to a full enquiry under the rules and the mandate to post those reasons to the Chairman of KVS, i.e. Minister, Human Resources Development. The Court found that the facts showed that adequate opportunity had been given to the Petitioner to represent his side, and principles of natural justice had been followed.  [Gokul v Union of India, 2016 SCC OnLine Bom 3549, decided on 7-06-2016]

Case BriefsHigh Courts

Bombay High Court: Hearing a writ petition, a bench comprising of B.R. Gavai and S.P. Joshi, JJ granted ad interim relief to the Petitioner seeking admission in post- graduate studies by clarifying that change in surname does not reflect change in caste. The Court found that the petitioner indeed possessed a ‘Validity Certificate’ showing his status as a member of the Scheduled Tribes, and the change of his name had been duly notified in the Government Gazette and thereby directed the respondents to consider the petitioner’s claim for admission from the reservation category. [Shantanu Hari Bhardwaj v. State of Maharashtra, 2016 SCC OnLine Bom 3863, decided on 23-05-16]

Case BriefsHigh Courts

Bombay High Court: Deciding a case on amalgamation between two companies the Reliance Industries Limited and Reliance Petroleum Limited, Jamnagar the bench of S .C. Dharmadhikari, K.R. Shriram, B.P. Colabawalla, J.J., held that the order involving different High Courts of various states are separate instruments in themselves in case of scheme under Section 391 to 394 of the Companies Act, 1956 so the stamp duty will be payable on all orders without the benefit of remission, set-off or rebate.

In a case where Reliance Industries Limited, having its registered office in Maharashtra and Reliance Petroleum Limited, having its registered office in Gujarat entered into a scheme of amalgamation under Sections 391 to 394 of the Act,  wherein the Act required the scheme of amalgamation to be approved by High Courts having territorial jurisdiction over the transferor company and the transferee company, the Bombay HC on June 7, 2002 passed an order sanctioning the scheme. RPL paid stamp duty of INR 10 Crores on the Gujarat Order in the state of Gujarat. The RIL on October 16, 2002 submitted the Bombay Order for adjudication of stamp duty and further contended that the maximum payable Stamp duty under Bombay Stamp Act, 1958 was INR 25 Crores and since RPL had already submitted 10 Crores, it only has to pay 15 crores.

However this contention was rejected by the revenue authorities and RIL and RPL were directed to deposit the entire stamp duty which is INR 25 crores on the Bombay Order. RPL and RIL appealed against the order of the revenue authorities but the appeal was rejected by Chief Controlling Revenue Authority, Maharashtra and a reference was filed before the Bombay High Court for its opinion on Section 54 of Bombay Stamp Act as it involved a substantial question of law.

Citing the case of Hindustan Lever v. State of Maharashtra (2004) 9 SCC 438, the Supreme Court decided in favor of the Revenue Authorities and held:

  • the stamp duty is not charged on the ‘transaction’ effected by the instrument rather, it will be charged on the instrument.
  • There cannot be a liability to pay Stamp Duty if a transaction is not supported by the execution of an instrument.
  • Although two orders of different High Courts relate to the same scheme, they cannot be said to be the same document and are independent and different instruments.
  • The order sanctioning scheme of arrangement is the chargeable instrument under the stamp duty laws and not the scheme.
  • the benefit of Section 4 of Bombay Stamp Act will not be available on Orders passed by different high courts sanctioning the scheme of arrangement as they do not constitute several instruments used in a single transaction. [  Chief Controlling Revenue Authority, Maharashtra State v. Reliance Industries Limited, Mumbai, 2016 SCC OnLine Bom 1428, decided on March 3, 2016].
Case BriefsHigh Courts

Bombay High Court: While deciding a petition under Article 226 of the Constitution for issuance of writ of mandamus, the Court directed the respondents to grant leave to the Petitioner in terms of Rule 43-C for 730 days for bringing up and welfare of a disabled daughter, the bench of A.S. Oka and P.D. Naik, J.J., directed the State Government to constitute State Co-ordination Committee which shall take decision whether to grant child care leave with pay or not.

In a case where the petition was filed against State Government for not granting child care leave, the petitioners relied upon Rule 43-C of the Central Civil Services (Leave) Rules, 1972 which provides a woman Government servant having a minor child below the age of 18 years and who has no earned leave at her credit is entitled to apply for Child Care Leave for a maximum period of 730 days during the entire service for taking care of children. Sub-rule (2) of Rule 43-C, such woman Government servant is entitled to full pay during the said leave period. It was further contended that Section 13 of the Disabilities Act makes it obligatory for the State Government to establish a State Coordination

Committee and under Section 18 obliges the Committee to discharge several duties. Petitioners relied on Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration, (2014) 15 SCC 300 where  under the similar facts leave under Rule 43-C was granted to the appellant.

On the contrary, the respondent submitted that there is no such provision in leave rules of State Government on par with Rule 43-C of the Central Rules and therefore the petitioner is not entitled to leave. It was further submitted that Kakali Ghosh case is not applicable in the present case as in that case Central Rules were applicable and moreover, if such leave with pay is granted a large number of women Government servants will be on leave which will affect the functioning of the Government.

Considering the above mentioned contentions, the Court was to the view that as the Petitioner is not governed by the Central Rules, a writ of mandamus directing the Respondents to grant the benefits to the Petitioner which are available under the Central Rules cannot be issued. The Court passed the following orders:

  1. Directing the State Co-ordination Committee constituted under subsection (1) of Section 13 of the Disabilities Act to perform its function by advising the State Government to formulate legislations on the issue whether there should be a provision made for grant of special child care leave to a woman Government servant who is a mother of a disabled child covered by the definition of person with disability under Clause (t) of Subsection (2) of the said Act.
  2. That if there is no State Co-ordination Committee then it shall be constituted and decision shall be given before 30th June 2016.
  3. That if the State Government grants such relief, petitioner will be governed by its decision and if it does not grants, the petitioner will have to resume her duty. [Deepika Sagar Nersekar v State of Maharashtra, 2016 SCC OnLine Bom 2762, decided on May 13, 2016].
High Courts

Bombay High Court: Upholding the decision of the Income Tax Appellate Tribunal, a division bench comprising of SC Dharamadhikari and GC Kulkarni, JJ held that transfer of a business undertaking as a going concern against bonds and preference shares issued was not a sale, but an exchange. Subsequently, section 2(42C) and section 50B of the Income Tax Act, 1961 relating to the computation of capital gains were not applicable to such a transfer. In the present case, the  respondent company had transferred its lift division to another company by way of a slump sale and as consideration for the transfer, preference shares and bonds were allotted by that company to the respondent. The taxpayer claimed that the transfer was an ‘exchange’ and not a ‘sale’ and therefore, was not taxable as slump sale. However, this was not accepted by the Tax Officer. The company then appealed to the Tribunal which accepted its contentions. Aggrieved by the decision of the Tribunal, CIT moved the High Court. The Bombay High Court relying on the findings and observations of the Tribunal, also concluded that the entire scheme of arrangement envisaged that the transfer of the lift division was not for any monetary consideration, thus it was a case of exchange and not sale. The Court distinguished the facts of this case with the  Delhi High Court ruling of SREI Infrastructure  Finance Limited (SIFL) vs. Income Tax Settlement Commission, Writ Petition Civil No. 1592/2012 where the consideration was in terms of  money as well as shares, thus the transfer could not be termed as an exchange in that case. Commissioner of Income Tax vs. Bharat Bijlee Limited, Income Tax Appeal No. 2153 of 2011, decided on May 9, 2014

To read the full judgment, click here

High Courts

Bombay High Court: Granting relief to a final year student of engineering, a bench comprising of  Anoop Mohota and AA Sayed, JJ set aside an order of the Caste Scrutiny Committee which had invalidated the claim of the student that he belonged to the Scheduled Tribe. The Court remanded the matter back to the Scrutiny Committee to reconsider the claim of the petitioner that he belonged to Thakur caste which comes under Scheduled Tribe. The Court opined that in this case, the scrutiny committee had not considered the documents and evidence and wrongly applied law on  affinity test issue, area restriction removal and caste certificates of relatives based on similar wrongly framed issues. It asked the Scrutiny Committee to reconsider every aspect, by giving an opportunity to all parties. Taking into account that the student had already completed 3 years of the course, liberty was granted to the student to apply before the committee for filing additional evidence, oral and documentary material. The Court said that in case the committee passes an adverse order against the petitioner, the same should not be given effect to and/or acted upon for four weeks thereafter from the date of communication of the order. Till then, the petitioner should be allowed to finish the engineering course, however, it would be subject to the final decision of the scrutiny committee and/or subsequent challenge, the Court clarified. Swapnil Subhash Gaikwad vs. State  of  Maharashtra, Writ Petition No. 10084 of 2010, decided on May 23, 2014

To read the judgment, click here

High Courts

Bombay High Court: In a significant order, a bench comprising of  Mridula Bhatkar, J has held that a court can adjourn hearing of anticipatory bail plea without granting interim protection from arrest to the accused. In the present case, the accused had approached the High Court after the sessions court refused to grant them interim relief from arrest and adjourned hearing of their plea seeking anticipatory bail. The Counsel for the appellant had argued that whenever an application seeking anticipatory bail is made under Section 438 of Code of Criminal Procedure (CrPC), the Trial Court shall either reject the said plea forthwith or issue an interim order in respect of anticipatory bail and no third option is open to the court to adjourn the application without granting any interim relief to the accused. The Court rejecting the arguments of the Counsel observed that the power of anticipatory bail needs to be carefully used as the court has to achieve balance between protection of liberty of an individual and the effective and unhampered investigation by the state machinery. Adjourning matter after passing the interim bail in favour of the accused may give setback to the investigating machinery to collect evidence and will push the victim and witnesses into a fearful trauma. There are crimes which go unreported only because the citizens do not feel safe and assured to come forward and give complaint as they have apprehension that the accused will go scot free or will be protected under law, the Court stated.  Though in many cases, bail is said to be a rule, anticipatory bail cannot be a rule but is to be left to the cautious, judicious discretion of the judge depending on the facts of each case, the Court held. Shrenik Jayantilal Jain vs. State of Maharashtra, Anticipatory Bail Application No. 541 of 2014, decided on May 8, 2014

To read the full judgment, click here