#bombayhighcourt Archives - Page 9 of 12

17 Aug

Bombay High Court: Imposition of LBT which was due before GST came into force is valid

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blog #bombayhighcourt, #choleregion, #localbodytax

Title: Wintry Engineering & Chemicals Pvt. Ltd. v. State of Maharashtra & Ors.

Decided on: AUGUST 08, 2023

WRIT PETITION NO. 9988 OF 2023

CORAM: G. S. KULKARNI & JITENDRA JAIN, JJ.

Facts of the Case

Petition has been filed by the Petitioner, who challenges the imposition of Local Body Tax (LBT) on his factory. According to him,

Contentions

The petitioner contends that the Chole village, where his factory is situated is outside the jurisdiction of Municipal Corp or Kalyan-Dombivli Region. Chole village was not included in Schedule-I of the notification by the government outlining the areas under Kalyan-Dombivali Municipal Corp. The second contention was that the MMC Act, 2017 deleted LBT. It was illegal for the respondent/corporation to demand interest and penalty, as it is his submission that the LBT provisions would not permit levy of penalty and interest and if at all the rules provide for it, they are ultra virus the Municipal Corporation Act.

The Respondents denying that the non-inclusion of chole village submit that the village was included in Schedule – II by another notification. Addressing the second issue, it was contended that as per Sec. 78, powers under MMC Act which were in force immediately prior to the appointed day of the Maharashtra Goods and Services Tax Act, 2017, shall have effect after the appointed day of the Maharashtra Goods and Services Tax Act, 2017

Decision

The Court dismissed the petition for the respondents were able to strongly prove their case. Imposition of tax on them was upheld, but the petitioners were given the power to file for appeal later.

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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16 Aug

Single Judge Bench of Bombay HC refers the matter to a larger bench regarding maintainability of an Appeal filed by the victim against the judgment of acquittal by the Appellate

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Title: Asha Shivaji More v. State of Maharashtra and others

Decided on: 11TH AUGUST, 2023

+ CRIMINAL APPEAL NO. 63 OF 2022

CORAM: S. M. MODAK, J.

Facts of the Case:

The Respondents were accused of offences under Sections 379, 323, 427 read with Section 34 of the Indian Penal Code, 1860. The Respondents were acquitted by the Court of JMFC – Nashik. The State preferred an Appeal before the Court of Additional Sessions Judge – Nashik. It was dismissed on 30th June, 2015. On this background, the First-Informant preferred an Appeal to High Court against the said judgment.

Issues

Whether an Appeal filed by the victim against the judgment of acquittal by the Appellate Court is maintainable particularly when accused cannot file an Appeal when he is convicted by the Appellate Court either by confirmation / reversal, (but, he can file Revision)?

Decision

The learned Judge requested the Registrar (Judicial-I) to refer the matter to the Hon’ble Chief Justice for constitution of a Larger Bench for deciding above issue. Considering this, the decision in the Appeal is kept pending and they be decided after the decision will be given by a Larger Bench.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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16 Aug

Bombay High Court: The Court would not examine questions of entitlement to further development rights under the guise of examining the legality correctness of an order

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Title: Allarkha Ismail v. State of Maharashtra & Ors.

Decided on: 11 August 2023

WRIT PETITION NO.635 OF 2023

CORAM: G.S. Kulkarni & R.N. Laddha, JJ.

Facts of the Case

petition has been filed by the Petitioner, who claims that the Final Plot No.190 was allotted to him on account of having acquired earlier plot, which he had purchased from Mr Bhagat Singh Shankarbhai Solanki by registered Sale Deed dated 30.09.1985. After the said purchase, his name was added in the Index II instead of the vendor’s; but his name was mutated on the property card only in the year 2022. This land was taken by the Town Planning Dept. for road widening and he was allotted final plot. 190

Contentions

The petitioner contends that. Although the plot was allotted to him, he never received any physical possession of the same. The redevelopment work was taking place on his land as one of the other Respondents had forged documents and received a registration certificate. He had on multiple occasions attempted to notify the authorities to mutate his name on the document regarding FP 190. He also sent a notice regarding unauthorised construction on his land and despite receiving notice, the unauthorised work was not halted. To prove that Respondents’ docs were fake, they showed that the document was not placed on RTI website and that Bhagat Singh Solanki’s name was present but not his photo or signature. This was because they only knew his name and nothing else.

The Respondents denying that the documents were forged, contend that the development plan was approved by all. The petitioner had also submitted an undertaking that no adverse order had been passed by any Court while approving the plan.

The Respondents also submitted the Petitioner had forged the documents despite the death of the vendor Mr. Solanki. To prove this, they showed that Mr. Solanki had signed the purported authority letter in English while in the conveyance all signatures were in Gujrati with the name endorsed as Bhagat Singh Shankarbhai Solanki. Since Mr. Solanki had died intestate, his legal heirs who acquired his property sold the impugned plot to Jawahar Doshi, who then sold it to Mr. Vardhaman (one of the respondents, who is alleged to have forged documents of FP 190). They also added that no response was given by the Petitioner for the delay and laches.

Decision

The Court held that it would not examine issues that are essentially title disputes and complicated questions of entitlement to further development rights under the guise of examining the legality, validity, and correctness of an order of deemed conveyance in the exercise of writ jurisdiction. The appropriate remedy for the aggrieved party is to file a substantive suit before the competent Civil Court.

The petition is accordingly dismissed.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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11 Aug

If the parties have direct knowledge of the notice of suspension, it constitutes serving of notice: Bombay HC

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Title: Sadanand Mishra v. Union of India and others

Decided on: 02 AUGUST 2023.

+ WRIT PETITION NO. 4557 OF 2002

CORAM: NITIN JAMDAR & SANDEEP V. MARNE, JJ.

Facts of the Case:

The Petitioners are ex-Constables working in the Railway Protection Force (RPF), who were removed from service by order dated 01 January, 1987 as a measure of punishment after initiation of disciplinary proceedings. Both Petitioners claim that they were unaware of penalty orders of removal passed on 01 January 1987 and contend that the same were received by them on 26 September 2001. They accordingly filed appeals against the penalty orders, which were rejected. Thus, in this Appeal they have challenged the removal orders dated 01 January 1987 as well as orders passed by the Appellate Authority on 11 March 2002.

Petitioners got embroiled in CBI Case regarding demand and acceptance of illegal gratification. Both Petitioners were placed under suspension owing to registration of CBI Case against them vide orders dated 26 November 1984.

Issues

Whether the removal orders made without the acceptance of same by the petitioners valid even after the appeal was made 16years later?

Contentions

The petitioners submit that the entire inquiry proceedings as well as penalty orders are vitiated on account of violation of principle of natural justice. The inquiry proceedings were conducted behind the back of Petitioners without serving them Memoranda of chargesheet and without affording them any opportunity of hearing. No inquiry was held under the garb of refusal of charge-sheets by Petitioners. In absence of any inquiry being held, Petitioners could not be penalised. That even the orders of removal from service were not served upon Petitioners and therefore the same cannot take any effect. The provisions of Railway Protection Force Act, 1957 or the Rules made thereunder do not mandate daily attendance by a suspended member of the Force. He would therefore submit that failure to give daily attendance would not constitute as misconduct on the part of the Petitioners. The Petitioners have ultimately been acquitted in the Criminal Case and faced minor charge of failure to give daily attendance during period of suspension, for which penalty of removal from service is harsh.

The Respondents contend that the notices were actually served. The brother of the petitioner informed them about the notice and therefore, the notices were actually served.

Decision

The Court observed that the Respondents have taken all the necessary measures to serve the notice, by trying for the same on multiple occasions. The Petitioners did not make any attempt to inquire about their subsistence allowance and particularly regarding the non-receipt of the same, when any prudent person would have done so. In the present case, after 18 April 1985 Petitioners admittedly did not make any effort to inquire about status of their services. The first communication addressed by Petitioners for supply of copies of removal orders was on 28 September 2001. Thus, for a period of 16 long years, Petitioners did not seek to know about status of their services. The action is barred by time.

It was petitioners’ duty to ensure that their correct addresses were maintained in the Respondents’ office for service of any communication. Respondents cannot be faulted in addressing various communications such as chargesheets, show cause notices and penalty orders at addresses given by Petitioners. We find that the Respondents have made genuine attempts to serve various communications to petitioners from time to time. We therefore cannot hold Respondents responsible for non-service of penalty orders removing Petitioners from service.

Petitioners were made aware of the fact that disciplinary proceedings were initiated against them, because of the attempt by ASI in the Court of the CBI Judge.

The petition was dismissed.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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11 Aug

Bombay High Court: Issuance of show cause notice is not institution of disciplinary proceedings

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Uncategorized #bombayhighcourt, #disciplinaryproceedings, showcausenotice

Title: Narendra K. Kumbhare v. Union of India & Ors.

Decided on: 8th AUGUST, 2023.

WRIT PETITION NO. 2539 /2021

CORAM: A.S. CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ.

Facts of the Case

The petitioner has superannuated on 30.06.2021 as Deputy Manager (Scale II). On the very day a notice was issued calling upon him to show cause as to why departmental action should not be initiated against him under the United India Insurance Company (Conduct, Discipline and Appeal) Rules 2014 for not submitting the Caste Validity Certificate. The lapse/omission according to the respondents constitutes misconduct. If satisfactory explanation is not submitted before 15 days from the date of receipt of the said letter, appropriate action will be taken by the Company.

Issues

Whether issuance of show cause notice amounts to initiation of enquiry?
Whether withholding of pension benefits of the Petitioner was valid?

Contentions

The petitioner contends that the rules mention that disciplinary proceedings already instituted against the employee on the date of retirement will affect his retirement. The departmental proceedings are a trite law, it is not merely initiated by issuance of show cause notice. It is initiated only when charge sheet is issued. The petitioner is also entitled to other retirement benefits as mentioned in Rule 55. The Respondents without any reason have withheld Gratuity, Leave Encashment, Group Insurance and probably Regular Pension and other retiral emoluments. As per Rule 45, the pension should only be deprived in cases of departmental proceedings; in the instant case, there are no departmental proceedings, so the deprivation of pension is illegal.

The Respondents oppose the petition that, since he was appointed under ST Reservation Policy and was receiving benefits under the Reservation Policy, he should have submitted his Case Validity Certificate. The respondents had issued various Circulars asking him to produce or to apply for Caste Validity Certificates. Each time the petitioner prayed for more time and avoided submitting his documents for verification before Caste Scrutiny Committee citing one or other reasons. The petitioner has incorrectly insisted that once a verification has been performed, the respondents may not seek another verification of the caste status. The pensionary benefits of the petitioner are withheld as the show cause notice dated 30.06.2021 was issued on the date of his retirement and therefore, according to the respondents, the enquiry stands initiated. As per provisions, the respondents can withhold the gratuity during the pendency of the enquiry

Decision

The Court held that Mere issuance of such show cause notice would not amount to initiation of the departmental enquiry. There are no departmental or judicial proceedings pending against the petitioner, therefore, the question of payment of provisional pension and withholding of the benefits does not arise.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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