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Not providing labor permanency for 14 workmen is an unfair practice : Bombay HC

TITLE : Solapur Mahanagarpalika v Yogesh Nagnath Mane & Ors

CITATION : . CIVIL WP-14150-2023

CORAM : Hon’ble justice Milind N. Jadhav

DATE:  4th December, 2023

INTRODUCTION :

A writ petition was filed under Article 226 to challenge the judgement given by the Industrial Court.

FACTS :

The complainants were working as Malaria field workers with petitioner corporation since 1997-98. They were employed due to the issuance of advertisements in newspapers followed by interviews and wait listing.

Initially, they were paid a salary of Rs. 5000/- per month but thereafter they were paid salary on a daily wage basis. It was contended that the petitioner corporation had specific vacant posts of Field Workers. The field workers were given artificial breaks according to the petitioner company and in those breaks, the 14 workmen used to work.

However the benefit of permanency was not given to the current respondents when 2500 other employees were given job permanency. It was held by the labour industrial court that the company had indulged in an unfair practice.

COURT’S ANALYSIS

The court held that it is seen that the entire evidence on record clearly proves that all 14 original Complainants / workmen i.e. Respondents herein were in continuous service of the Petitioner Corporation since 1997-98 and all of then have worked with the Petitioner Corporation for more than 240 days in each year for more than 10 years even before filing of the present Complaint and are continuing to do so for the past 25 years and held the order passed by the industrial court is valid.

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Article 14 of the constitution cannot be enforced on the basis of negative equality : Bombay HC quashed writ challenging the constitutionality of provisions of Bombay Entertainment Duty Act, 1923.

TITLE : Drishti Adventures Sports Private Ltd and Ors V State of Maharashtra

CITATION : W.P No 2158 of 2005

CORAM : Hon’ble justice G.S Kularkani and Hon’ble Jitendra Jain

DATE:  4th December, 2023

INTRODUCTION :

A writ petition was filed under Article 226 to strike down Sectio 3(1) and Section 3(5A) of the Bombay Entertainment Duty Act,1923 as ultra vires of the constitution on the ground that activities about water based activities and amusement park activities are not distinguished and hence cannot be taxed.  

FACTS :

The respondent passed a resolution granting a lease of 500 sq. mts of land to Maharashtra Tourism and Development Corporation for the development of water sports activities. The lease was granted for a period of 10 years to develop manage and operate water sports activities on the basis of terms and conditions set.

On 14th March 2002, the petitioners addressed a letter to the MTDC requesting exemption from entertainment duty payment. On 26th March 2002, the petitioners addressed a letter to the respondents recording that the water sports activity does not fall under the Bombay Entertainment Duty Act, 1923. On 27th March 2002, respondent issued a demand notice asking the petitioners to pay the entertainment duty of Rs.8,53,943.

The contention raised by the petitioners is that the respondents have not recovered entertainment duty from the persons purportedly carrying on/engaged in similar activities in the State of Maharashtra and therefore, under Article 14 of the Constitution of India, the petitioners are discriminated and the petitioners too should not be made liable for payment of entertainment duty on its water sports activities.

COURT’S ANALYSIS

The court held that the petitioners contention is in the nature of negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only. The court held that it is unacceptable on the face of the record for the petitioner to claim that the money levied by paid on the way of protest. Additionally, it was held that such claim is not under the scope of Article 14 as the claim is negative equality whereas Article 14’s scope is purely upon positive equality.

Secondly, on the issue of Constitutionality of the said provisions the court held that there is a clear distinction between water based activities and amusement park activities. The legislative on that matter is clear. The petition was dismissed.

 

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Bombay HC acquits a person due to the lack of incriminating evidence in a homicide trial : Motive, Last seen together and DNA evidence not sufficient.

TITLE : Ganesh Bhatu Shinde V The state of Maharashtra

CITATION : Criminal Appeal 549 of 2018

CORAM : Hon’ble justice Smt.Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase

DATE:  7th December, 2023

INTRODUCTION :

There being charge of Sections 302 and 201 of the IPC, it is necessary to be seen whether in the trial Court prosecution has established death of Deceased to be nothing but homicidal.

FACTS :

The appellant was alleged of a murder as he had an dispute with the deceased. It is the story of the prosecution that, appellant had approached deceased on 14-08-2015 for compromising the matter and accordingly, deceased was taken to the Court but there deceased put up conditions which angered appellant and thereby he was taken, assaulted and his body was finally disposed of at a remote place which was finally spotted by Police Patil and then Police came in picture.

One of the witnesses claimed that the death was of due to vehicular accident. However the autopsy doctor held that there was no injury to sustain the argument of vehicular accident and the death is of homicidal nature.

COURT’S ANALYSIS

The court held that since there was animosity and further, deceased putting up conditions for withdrawal had also allegedly angered appellant is sufficient motive along with the fact that the deceased allegedly abused the appellant in filthy language. Secondly, the appellant was the last person the deceased was seen with alive. However the court relied upon the witnesses and held that The proximity of time since last seen together and deceased found dead being considerably huge, it is improper to connect appellant with the death. As of the DNA marks of the appellant on the deceased, it was held that there was no sufficient incriminating evidence to prove the same as the quantity of DNA found was very less.

The appellant was acquitted and the charges against him under Section 102 IPC was quashed.

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Bombay High Court: Disposed A Application Challenging The Order Of J.M.F.C As No Issue Regarding Jurisdiction Was Made By Applicant

Title : Nitin Vikas Karake v Mrs.Chetana Nitin Karake

Citation: Criminal Revision Application No.355 Of 2023

Decided On: 28th November, 2023.

Coram: Justice Rajesh S. Patil

Introduction:

This Criminal Revision Application filed under Section 397 of the Code of Criminal Procedure, challenges the impugned judgment and order dated 26 September 2023 passed by the Sessions Court, Satara in PWDV Criminal Appeal No.5 of 2023 and order dated 1 February 2023.

Facts:

The Applicant husband and Respondent wife got married on 18 December 2014 at Satara. Respondent wife was earlier married, but since her first husband died, at the time of time of her second marriage, with the Applicant, she was a widow. There are no issues out of the present marriage. As there were disputes and differences between the husband and wife ; wife filed Criminal Miscellaneous Application No.481 of 2022 under the provisions of the Domestic Violence Act, 2005 (for short “D.V. Act”) under Sections 12, 18, 19, 20, 22 and 23 before J.M.F.C., Satara. In the said Application, it was pleaded that she was residing in Pune for the purpose of studying computer education at Pune, and she used to time and again go to Satara. It is further stated that the brother of the wife one Mr.Akshay Arun Patil, is residing at Satara, along with parents and he is taking care of monetary aspect as to education, medical expenses and day to day expenses of the Respondent / wife.

The husband appeared in the proceedings and thereafter filed an application on 29 November 2022, before J.M.F.C. seeking rejection of the complaint filed under D.V. Act on the ground of want of jurisdiction. J.M.F.C. heard the parties and by his judgment and order dated 1 February 2023, rejected the application of the husband. Being aggrieved by the order dated 1 February 2023, passed by J.M.F.C., Husband filed Criminal Appeal under Section 29 of the D.V. Act before the Sessions Court, Satara bearing PWDV Criminal Appeal No.5 of 2023.

The Sessions Court, consequently after hearing the parties in PWDV Criminal Appeal No.5 of 2023, dismissed the appeal by its judgment and order dated 26 September 2023. he present Criminal Revision Application is filed by the husband challenging both the judgment an order passed by J.M.F.C., Satara and Sessions Court.

Court’s Analysis and Judgement:

It is an admitted fact that before the marriage, Respondent wife was residing with her parents at Satara. After the marriage, the husband and wife stayed at Navi Mumbai and also at Pune in a leave and license premises. In the D.V. proceedings filed by the wife at J.M.F.C., Satara, the address of the wife is that of Satara. So also in paragraph 34, it has been stated that she has been taking education of computer at Pune and she has been, time and again going to Satara.

In the present proceedings, it is not the case of the wife that she was temporarily residing at Satara. In fact, her case is that her permanent address is at Satara, which is her parent’s residence. Before marriage she stayed at Satara, there is no permanent address of wife at Pune. Hence, at the most, her residence at Pune can be called as temporary place of residence, and her permanent place of residence would be at Satara. Even the husband has his native place of residence at Karad, which is 50 k.m. away from “Satara city”, even though the husb

Taking into consideration of the above facts, there is no perversity in the finding of J.M.F.C., Satara and Sessions Court, Satara. Hence, this Criminal Revision Application is dismissed.

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Post the termination of sub lease agreement, the lessee is not meant to collect rent and add it as an income to the owner : Bombay HC

TITLE : T.V. Patel Pvt. Ltd.v The Dy. Commissioner of Income Tax

CITATION : Income Tax Appeal No.699 of 2002

CORAM : Hon’ble Justice G.S Kulkarni and Hon’ble Justice Jitendra Jain

DATE:  4th December, 2023

INTRODUCTION :

The appeals relate to the assessment year 1986-87, 1987-88, 1988-89, 1990-91, 1991-92 and 1993-94 for deciding the question of law on whether an Assessing Officer was justified in reopening the assessment under Section 148 of the Income Tax Act.

FACTS :

The appellant entered into an agreement with Bombay Builders to construct a building and sell 30 flats to the appellant. Bombay builders was substituted with IDBI through a tripartite agreement. IDBI on various accounts have failed to pay the rent and a suit was filed by the appellant. On 20th March 1989, an assessment order under section 143 read with section 148 of the Act for the assessment year 1986-87 came to be passed and the rent on account of sub-lease agreement of the Appellant with IDBI amounting to Rs.3,42,720/- was added as income of the Appellant including the other assessment years. The assessing officer held that no amount is due from IDBI as lease and rent and therefore the question of taxing does not arise.

COURT’S ANALYSIS

The court had to examine whether the sub-lease rent of Rs.3,42,720/- sought to be taxed accrues or arises to the appellant in the assessment year 1986-87. The court held that the right to receive Rs.3,42,720/- under the sub-lease agreement is not a subsisting right in favour of the Appellant which too is a subject matter of civil dispute. Further, it was held that the determination of the amount payable by the IDBI to the Appellant as prayed for by the Appellant in its suit is to be determined by the Small Causes Court. The appellant had terminated the agreement upon the return of cheques and therefore the same is not justified as an income revenue of Rs.3,42,720 to be taxed.

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