Nominal Index [Citation 474 – 489]

1. Vilas Shantaram Kaldhone v. State of Maharashtra & Anr. 2022 LiveLaw (Bom) 474

2. Niketan Dilip Paldhe v. State of Maharashtra & Anr. 2022 LiveLaw (Bom) 475

3. Mohammad Azad Alam Diljad Ansari v. State of Maharashtra 2022 LiveLaw (Bom) 476

4. Ajitkumar S/o Motilal Kasliwal v. Central Bank of India 2022 LiveLaw (Bom) 477

5. Amarnath Madhukar Havshett v. Maharashtra Public Service Commission and Ors. 2022 LiveLaw (Bom) 478

6. Shri Arunkumar s/o Dwarklal Jaiswal v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 479

7. M/s Skoda Auto Volkswagen India Private Limited v. M/s Commercial Auto Products Private Limited 2022 LiveLaw (Bom) 480

8. M/s. Mehra & Company v. State of Maharashtra 2022 LiveLaw (Bom) 481

9. Union of India v. Reena D/o Kishor Kharwade 2022 LiveLaw (Bom) 482

10. State of Maharashtra and Ors. v. Smt. ABC and Anr. 2022 LiveLaw (Bom) 483

11. Suresh Madhukar Shendre v. State of Maharashtra 2022 LiveLaw (Bom) 484

12. Prakash C. Sheth v. State of Maharashtra & Anr. 2022 LiveLaw (Bom) 485

13. National High Speed Rail Corporation Ltd. v. State of Maharashtra 2022 LiveLaw (Bom) 486

14. State of Maharashtra v. Arya Pujari 2022 LiveLaw (Bom) 487

15. Pr. Commissioner of Income Tax v. Trigent Software Limited 2022 LiveLaw (Bom) 488

16. State of Maharashtra & Ors. v. Bharat Constructions 2022 LiveLaw (Bom) 489

Reports/Judgments

1. Bombay High Court Reduces Sentence of POCSO Convict Citing Good Behaviour In Jail; Upholds Conviction Due To DNA And Medical Evidence

Case Title: Vilas Shantaram Kaldhone v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 474

Justice Sarang V. Kotwal, while dealing with an appeal against POCSO conviction, observed that the appellant, as a convict and as an undertrial prisoner prior to that, had already been in jail for longer than the minimum sentence under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) at the time of the offence and his conduct in the jail is satisfactory.

The court upheld the conviction observing that the DNA report is one of the most incriminating pieces of evidence and cannot be overlooked.

2. [S.311 CrPC] Statement Made In Cross-Examination Alone Cannot Be Basis To Recall Witnesses: Bombay High Court

Case Title: Niketan Dilip Paldhe v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 475

The Bombay High Court held that a suggestion put by an accused to the complainant during cross-examination doesn't create a right in the complainant's favour to seek his own re-examination under section 311 of the CrPC, especially after he was allowed to testify the first time using the same provision.

Justice Amit Borkar therefore quashed a Magistrate's order allowing the complainant's application under section 311 of the CrPC to produce two invoices in a cheque bouncing case under section 138 of the Negotiable Instruments Act 1881.

3. Pushed Out Of Running Train Upon Sudden Quarrel, Not Attempt To Murder: Bombay High Court

Case Title: Mohammad Azad Alam Diljad Ansari v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 476

The Bombay High Court set aside a 22-year-old man's attempt to murder conviction observing that there was no premeditation as he pushed the victim from a running train in a sudden quarrel. The court convicted him under section 308 of the IPC (attempt to commit culpable homicide) instead. The court considered the mitigating factors such as young age and recent marriage of the appellant and reduced the sentence to the period he had already suffered.

4. "Attempt To Defraud The Bank": Bombay HC Upholds Dismissal Of Employee For Claiming Reimbursement Through Fake Medical Bills

Case Title: Ajitkumar S/o Motilal Kasliwal v. Central Bank of India

Citation: 2022 LiveLaw (Bom) 477

The Bombay High Court upheld a peon's dismissal from Central Bank of India for claiming and receiving over 6 lakhs as reimbursement for medical bills from a non-operational medical shop, observing that dismissal is proportionate punishment for his attempt to defraud the bank.

The court noted that the petitioner did not dispute labour court's finding that the licence of the concerned medical shop was surrendered in 2010 but he kept on producing bills from that shop up to August 2013. The court did not accept the petitioner's defence that the shop was home delivering medicine to him as there was no evidence to that effect.

5. Bombay HC Restrains State From Issuing Appointment Orders To Engineers Selected Under EWS Quota Until Final Decision On SEBC Reservation

Case Title: Amarnath Madhukar Havshett v. Maharashtra Public Service Commission and Ors.

Citation: 2022 LiveLaw (Bom) 478

The Bombay High Court has restrained the Maharashtra Public Services Commission (MPSC) from issuing appointment letters for engineers under the reserved Economically Weaker Section Category (EWS) till the issue of diverting SEBC candidates to EWS is settled.

The bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja noted that a petition challenging MPSC's decision to consider candidates from the Socially and Educationally Backward Classes (SEBC) for EWS posts after the SEBC Act was struck down by the Supreme Court is pending final hearing.

Therefore, the court stayed the appointment process to 111 EWS posts and directed the MAT to dispose of the matter by January 2023.

6. Legal Proposition That Partnership Is Not Heritable Status And Depends On Contract Prevails Over Govt Circulars: Bombay High Court

Case Title: Shri Arunkumar s/o Dwarklal Jaiswal v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 479

The Bombay High Court recently held that the legal position, that partnership depends on contract and is not a matter of heritable status would prevail over government circulars.

A division bench of Justice A. S. Chandurkar and Justice Urmila Joshi Phalke of the Nagpur bench in a letters patent appeal set aside a Single Judge order which allowed the wife of a deceased partner to be added in the firm's wine licence despite contrary provisions in the partnership deed. The Single Judge had relied on a government circular of 1994 in the decision.

7. A&C Amendment Act of 2015 Applies Even If Arbitration Commenced Prior, In Case It Is Stated That Amendment Act Applies: Bombay High Court

Case Title: M/s Skoda Auto Volkswagen India Private Limited v. M/s Commercial Auto Products Private Limited

Citation: 2022 LiveLaw (Bom) 480

The Bombay High Court ruled that where an arbitration agreement between the parties provided for the application of the Arbitration & Conciliation Act, 1996 (A&C Act), along with any statutory modification or re-enactment to the A&C Act, existing at the time being in force, it constituted an agreement between the parties as contemplated under Section 26 of the A&C (Amendment) Act, 2015. Thus, the Court held that the parties were bound by the 2015 Amendment Act, notwithstanding the fact that the arbitral proceedings commenced prior to the cut-off date, i.e., 23.10.2015.

The bench of Justices Mangesh S. Patil and Abhay S. Waghwase were dealing with an arbitration agreement that provided for the applicability of the A&C Act, 1996, along with any modification introduced in the Act. The Court concluded that the said agreement clearly conveyed the intention and understanding between the parties to be bound by the 2015 Amendment Act, and that it was not merely an understanding in respect of the procedural aspects of the arbitration proceeding.

8. Clause Merely Providing Departmental Remedies, For Faster Resolution Of Disputes; Does Not Constitute An Arbitration Agreement: Bombay High Court

Case Title: M/s. Mehra & Company v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 481

The Bombay High Court ruled that the power of appointment of arbitrator by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), cannot be deemed to have a precedential value. However, the Court held that the same cannot be a reason to completely ignore the interpretation placed by the High Court in its previous decisions, in respect of the identical clauses contained in the agreement, while dealing with an application under Section 11.

The single bench of Justice Sandeep V. Marne ruled that where a clause merely provides for departmental remedies to a contractor for faster resolution of disputes, the same would not constitute an arbitration agreement.

9. Passenger Having Valid Ticket But Boarded Wrong Train Entitled To Accident Compensation Under Railways Act: Bombay HC

Case Title: Union of India v. Reena D/o Kishor Kharwade

Citation: 2022 LiveLaw (Bom) 482

The Bombay High Court recently held that a person carrying a ticket for a different train/journey than the one he actually undertakes would also be "passenger" under Railways Act, 1989 and will be entitled to compensation in case of an accident.

"Nowhere the above said two provisions (sections 2(29) and 124-A) which define "passenger" stipulate that to be a passenger one has to hold a ticket only for any particular train on which the person is to travel. The Section merely requires a valid ticket for travelling by train carrying passengers on any date", the court observed.

Justice Abhay Ahuja of the Nagpur bench upheld the compensation granted by the Railway Claims Tribunal in a case where the victims boarded the wrong train and fell down while trying to alight from it.

10. Bombay High Court Sets Aside MAT Order For Reinstatement And Back Wages Observing That The Employee Resigned Voluntarily

Case Title: State of Maharashtra and Ors. v. Smt. ABC and Anr.

Citation: 2022 LiveLaw (Bom) 483

The Bombay High Court set aside Maharashtra Administrative Tribunal's (MAT) direction to reinstate a craft instructor at ITI Vikramgad observing that her resignation was voluntary and there was no relation between the resignation and the alleged sexual harassment she faced from the principal.

The division bench led by Justice Dipankar Datta noted that the principal of the institute had been transferred from Vikramgad almost a year before her resignation.

11. Bombay HC Says Man Who Killed Wife In 'Sudden Quarrel' Over Improperly Cooked Meat Not Guilty Of Murder, Reduces Life Sentence

Case Title: Suresh Madhukar Shendre v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 484

The Bombay High Court reduced the sentence of a man who killed his wife for not cooking meat properly observing that he did not act in a cruel or unusual manner and this was a case of sudden quarrel without any premeditation.

Justice Rohit B Deo and Justice Urmila Joshi-Phalke of the Nagpur bench said that this incident is covered under the exception 4 of section 300 (murder) of the IPC which provides that culpable homicide would not be murder if it is committed without premeditation upon a sudden quarrel. Therefore, the court convicted him under section 304 Part I (punishment for culpable homicide not amounting to murder) of the IPC and reduced his sentence to 10 years of rigorous imprisonment.

12. Informant Is Entitled To Opportunity Of Hearing In Discharge Application Of Accused: Bombay High Court

Case Title: Prakash C. Sheth v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 485

The Bombay High Court reiterated that a first informant has a right to audience in the discharge application filed by the accused before the Court.

To observe thus, the bench of Justice Amit Borkar relied upon the High Court's 2020 ruling in the case of Prakash C. Sheth vs The State Of Maharashtra And Anr, wherein it was held that the first informant is entitled to hearing in Revision Application claiming discharge by the accused.

13. Bombay High Court Allows Felling Of Over 20,000 Mangrove Trees For Bullet Train Project, Imposes Conditions

Case Title: National High Speed Rail Corporation Ltd. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 486

The Bombay High Court allowed a plea to fell over 20, 000 mangrove trees in Mumbai, Palghar and Thane to pave the way for bullet train project from Mumbai - Ahmedabad.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja allowed the project to be completed owing its "public importance", subject to seven conditions.

The petition was filed by the National High Speed Rail Corporation (NHSRCL) in 2020 that has undertaken the project. An intervention was filed by NGO Bombay Environmental Action Group (BEAG) against the felling of trees. The court had reserved its order in the plea on December 1, 2020.

14. Written Exams For Police Constable Post Shall Not Be Conducted If Recruitment Rules For Transgender Persons Not Framed Within Three Months: Bombay High Court

Case Title: State of Maharashtra v. Arya Pujari

Citation: 2022 LiveLaw (Bom) 487

The Bombay High Court was hearing state's plea against Maharashtra Administrative Tribunal's direction to include transgender persons in recruitment for all posts of the Home Department.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja directed the state to frame rules according to the Central Government's Transgender Persons (Protection of Rights) Rules, 2020 and complete the physical tests of all candidates except transgender candidates within two and a half months, i.e., by February 28, 2023. Physical examination of transgender candidates will be done in the last fortnight, said the court. Till the rules are framed and the physical tests are conducted, the state shall not proceed with the written tests for all candidates, the court held.

15. Expenditure On Development Of New Product, Shown As 'Capital Work In Progress'; Deductible As Revenue Expenditure, If Project Is Subsequently Abandoned: Bombay High Court

Case Title: Pr. Commissioner of Income Tax v. Trigent Software Limited

Citation: 2022 LiveLaw (Bom) 488

The Bombay High Court ruled that the expenditure incurred on development of a new product, in respect of the same business already carried on by the assessee, which subsequently failed to come into existence and was abandoned, is eligible for deduction as revenue expenditure.

The bench of Justices Dhiraj Singh Thakur and Abhay Ahuja observed that though the assessee had treated the expenditure incurred on development of a new product as 'Capital work in progress' in its books of accounts, however, since no new asset came into existence which would be of an enduring benefit to the assessee, the expenditure incurred was revenue and not capital in nature.

16. Application Of Hudson's Formula For Computation Of Loss In Construction Contract, Not Unreasonable: Bombay High Court

Case Title: State of Maharashtra & Ors. v. Bharat Constructions

Citation: 2022 LiveLaw (Bom) 489

The Bombay High Court ruled that while deciding the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), the Court is not precluded from considering the findings and conclusions contained in the dissenting opinion of a minority member of the Arbitral Tribunal.

The bench of Justice Manish Pitale, referring to the Supreme Court's decision in McDermott International Inc. versus Burn Standard Co. Ltd. & Ors. (2006), that Hudson's formula is widely accepted in construction contracts for computation of losses.

The Court reiterated that to exercise jurisdiction under Section 34, the violation of public policy must be so unfair and unreasonable that it shocks the conscience of the Court. It further noted that what would constitute 'public policy', would depend upon the nature of transaction between the parties.

Other Developments

1. 'Gateway For Future Acquisition': PIL in Bombay High Court Seeks Protection Of Mahim National Park From Dharavi Slum Redevelopment Project

Case Title: Vanashakti and Anr. v. Dharavi Redevelopment Project Slum Rehabilitation Authority and Ors.

The Bombay High Court asked the Dharavi Slum Rehabilitation Authority to respond to a PIL seeking exclusion of Mahim Nature Park, a protected forest, from the Dharavi Redevelopment Project and the tender issued for it.

The PIL by NGO Vanashakti and environmentalist Zoru Bathena claims that the exclusion was an "eye wash," as, according to the tender condition, "excluded land" of the project could be acquired.

The petition states that the apprehension is borne out from the tender notice - the plan shows Mahim Nature Park (MNP) within the notified boundary of Dharavi Notified Area (DNA) but as an excluded area. Another plan shows MNP within the DNA boundary, and erroneously describes the MNP as a 'Recreational Open Space'.

2. BMC Officers Will Be Held Responsible If Any Untoward Incident Happens Due To Open Manholes In Mumbai: Bombay High Court

Case Title: Ruju Thakker v. State of Maharashtra

The Bombay High Court on Wednesday said that it will hold the BMC responsible if there is any untoward incident due to open manholes in Mumbai.

The division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing a contempt petition filed by lawyer Ruju Thakker about the bad conditions of roads and open manholes across the city.

The court also directed the civic bodies to file affidavits detailing steps taken to comply with an earlier judgment directing the civic bodies to maintain roads, footpaths etc and cover all manholes in the state. The civic bodies also have to detail the preventive safety measures they would undertake for monitoring of manholes/open drains/sewers/ventilation shafts and their coverings, ) as well as a road map of actions under relevant laws so as to avoid recurrence of any accidents in future.

3. Preliminary Inquiry Initiated On Complaint Alleging Uddhav Thackeray Holds Disproportionate Assets: Maharashtra Govt To Bombay High Court

Case Title: Gouri Abhay Bhide and Anr v. Union of India and Anr.

The Maharashtra Government informed the Bombay High Court that the Economic Offences Wing has initiated a preliminary inquiry in a complaint filed by one Gouri Bhide regarding alleged disproportionate assets of former Chief Minister Uddhav Thackeray and his family.

The division bench of Justice Dhiraj Thakur and Justice Valmiki Menezes reserved its decision on Bhide's PIL seeking directions to the CBI and ED to "take cognisance of her complaint filed with Mumbai police and take the investigation in their hands".

4. If Society Is Progressing, Why Can't Laws Also Progress? Bombay High Court Pulls Up Govt For Not Complying With SC Ruling On Transgender Rights

Case title – State of Maharashtra v. Arya Pujari

The Bombay High Court pulled up the state government for being in a "slumber" and not making provisions for transgender persons in recruitment in the police department.

"For seven years your government has not done anything despite there being an order of the Supreme Court. Why do we have to do it? You do not perform your functions and citizens are forced to come to court," the bench said referring to the 2014 Supreme Court judgment in NALSA v. UoI.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing the State's appeal against directions issued by the Maharashtra Administrative Tribunal for adding 'other gender' option in all recruitment applications of the Home Department.