Gujarat High Court Weekly Round-Up [7 February - 13 February 2022]

1.  Encroachment Over Public Land Can't Be Retained Citing Right To Shelter: Gujarat High Court

Case Title: Bandhkaam Mazdoor Sangathan vs State Of Gujarat

Case citation: 2022 LiveLaw (Guj) 26

While dismissing a PIL seeking to restrain the Railway authority from evicting slum dwellers until rehabilitation, the Gujarat High Court has held that the right to shelter is not a ground to continue encroachment on a public land. The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri recalled the observations made by a previous Bench in this regard:

"The debate as regards the rights of encroachers over public land vis a vis the right to shelter should come to an end. The right to shelter and encroachment are two different facet. An encroacher may save himself from being forcibly evicted only if during his period of stay over the encroached public land any enforceable legal right has crystallized in his favour. Otherwise, merely by asserting the Right to Shelter , an encroacher, over public land, cannot say that he cannot be evicted."

2. Judicial Interference Necessary When Principles Of Natural Justice Are Ignored In Determining Citizenship: Gujarat High Court

Case Title: Rasidaben W/O Sidikbhai Daudbhai v. State Of Gujarat

Case citation: 2022 LiveLaw (Guj) 27

While inquiring into a Habeas Corpus petition filed by the Petitioner seeking the release of her son from Special Operational Group, the Gujarat High Court has remarked,

"the least that is expected of the person who has been given such wide and vital powers of recommending the deportation of a person on the basis that he is not an Indian national, is to avail an opportunity of hearing to the person concerned."

This observation was made in reference to the wide powers that the Central Government is vested with to inquire into the nationality of a person and deport the person if not found to be an Indian national.

3. Equitable Relief Of Interim Injunction At A Belated Stage Is Not Proper: Gujarat High Court

Case Title: Mohammad Iqbalbhai Abdulkarim vs Chhaganbhai Shambhubhai

Case citation: 2022 LiveLaw (Guj) 28

The Gujarat High Court has held that when a party approaches the Court with delay, grant of remedy of interim injunction may not be proper. Justice AP Thaker remarked,

"The Plaintiff had also kept silence for almost 8 years in instituting the suit after the execution of the agreement to sell, the equitable relief of interim injunction at a belated stage is not proper one to be granted in the facts and circumstances of the case."

4. Statement Of Co-Accused U/S 25 Evidence Act Inadmissible In Court But Significant For Investigation: Gujarat High Court Refuses To Quash FIR

Case Title: Firoz Hajibhai Sodha vs State Of Gujarat

Case citation: 2022 LiveLaw (Guj) 29

The statement by a co-accused under Section 25 of the Indian Evidence Act can be treated as a clue or piece of information for initiating and conducting an investigation to find out whether there is any independent and satisfactory material for further investigation, the Gujarat Court has clarified. The Bench comprising Justice Vipul Pancholi made this observation while hearing an application under Section 482 of CrPC seeking the quashing of the FIR for charges under sections 65(e), 116B, 81, and 98(2) of the Gujarat Prohibition Act and under sections 465, 468 and 471 of IPC.

5. Offense Under Section 138 Of NI Act Maintaianable Only For Cheques Issued For 'Enforceable Debt' And Not 'Security': Gujarat High Court

Case Title: C.M. Smith And Sons. Ltd Through Deinesh Mohanlal Panchal Versus State Of Gujarat

Case citation: 2022 LiveLaw (Guj) 30

"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashing of the order passed by the CJM Rajkot for offence under Section 138 of the Negotiable Instruments Act.

6. Gujarat High Court Grants Joint Custody Of Differently Abled Corpus To His Father & Major Daughter

Case Title: Krupa Chirag Patel Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 31

In a peculiar case, where the corpus lost his memory up to 95% and his wife died by committing suicide, the Gujarat High Court has permitted the corpus' major daughter and his father to share joint custody of the corpus.

The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt further directed that once the second daughter of the corpus becomes a major, she will also have joint custody of the corpus and if, by then the corpus has completely cured and medically released, they can continue to look after him.

7. Depletion Of Sex Ratio Resulting Into More And More 'Exchange Marriages': Gujarat High Court

Case title - SANDIPKUMAR MANUBHAI PATEL Versus STATE OF GUJARAT

Case Citation: 2022 LiveLaw (Guj) 32

The Gujarat High Court has observed that the depletion of the sex ratio in the State of Gujarat is resulting in more and more cases of exchange marriages. It may be noted that it is a form of marriage involving an arranged and reciprocal exchange of spouses between two groups. The Bench of Justice Sonia Gokani and Justice Mauna M. Bhatt observed thus while hearing a case while uniting a couple after they were separated by the father of the woman as he wanted to marry her 'in exchange'.

8. Termination Order Referring To FIR Against Employee Without Departmental Inquiry Is Stigmatic: Gujarat High Court

Case Title: MINAKSHIBEN LAXMANBHAI PARALIYA Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 33

An order of termination referring to the FIR and case filed against the employee without conducting full departmental inquiry is bound to be stigmatic, the Gujarat High Court has observed today. The Bench comprising Justice Biren Vaishnav made this observation in a petition under Article 226 challenging the communication which terminated the services of the Petitioner. Accordingly, the Bench quashed and set aside the aforesaid communication.

9. "Welfare Of Children Most Important" Gujarat High Court Allows Habeas Corpus Petition In Favour Of Mother And Directs Children's Return To New Zealand

Case Title: SAPNA GEHLOT W/O DEVENDRA SINGH GEHLOT THRU POA KULDEEP SINGH CHAUHAN Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 34

Emphasising the significance of a mother's guardianship in the upbringing of her children, the Gujarat High Court has directed that the Respondent-Husband to hand over the custody of the three young children to the Petitioner-Mother situated in New Zealand. Coming down heavily on the Respondent-Husband, the Bench comprising Justice Sonia Gokani and Justice Nirzar S Desai remarked tersely:

"Here is the husband who had with predesigned tact had taken the children away from natural guardian mother and the mother's passport also was taken away by him ensuring that she could not travel and could not follow him up. He also simultaneously initiated the legal proceedings for custody and divorce knowing fully well that the wife's passport was with him and she was unable to come to India."

10. Industries Have No Legal Right To Discharge Industrial Effluent Into Sewer Lines: Gujarat HC Comes Down Heavily On Textile Industries For Sabarmati River Pollution

Case Title: ARVIND LIMITED THROUGH AUTHO. REP. HARDIK MOTIWALA Versus SUO MOTU

Citation: 2022 LiveLaw (Guj) 35

Emphasising that the major source of environmental pollution from textile industry is the huge amount of wastewater discharged with high chemical load, the Gujarat High Court has stressed the significance of effluent management in the textile industries discharging wastewater in the Sabarmati River. The Bench comprising Justice JB Pardiwala and Justice Vaibhavi Nanavati has made this observation while declining reliefs to the textile industries which prayed the Court to permit the industries to reconnect the sewer lines to enable them to discharge industrial effluent into the sewer lines.

11. No Feater Of Rights When No Condition Is Attached To Land Sold In Public Auction: Gujarat High Court

Case Title: HIRABHAI LAKHABHAI BHARWAD @ VIRABHAI LAKHABHAI BHARWAD Versus STATE OF GUJARAT & 5 other(s)

Citation: 2022 LiveLaw (Guj) 36

"When the land was sold in a public auction and when there is no condition attached to the said order of sale, then there can not be a feater of the rights of the person concerned to sale of the land in question", the Gujarat High Court has held.

The Bench comprising Justice AP Thaker made this observation in a petition challenging the order passed by the Special Secretary (Appeals) Revenue Department ('SSRD') vesting the Petitioner's land with the Government.

12. Gujarat High Court Grants Protection To Young Couple Wishing To Marry

Case Title: HITESHKUMAR NILESHBHAI PRAJAPATI Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 37

The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt while granting protection to a young couple wishing to marry each other, admitted the writ of habeas corpus seeking the release of Jayaben Shrimali from the care of the District Legal Service Authority, Banaskantha.

The Court had, on an earlier occasion, granted protection to the corpus who was interested in marrying the Petitioner Hiteshkumar Prajapati but was pressurised to state that he was below the age of 21 years. She was accordingly granted accommodation at a Women Protection Home until the Petitioner turned 21 year of age on 07.02.2022. She was granted security and basic amenities by the DLSA Full Time Secretary and the Administrator.

13. Employee Cannot Be Terminated Without Full Departmental Inquiry: Gujarat High Court

Case Title: DINESHBHAI DHUDABHAI PATEL Versus STATE OF GUJARAT and ORS

Case Citation: 2022 LiveLaw (Guj) 38

Gujarat High Court Bench comprising Justice Biren Vaishnav while allowing the Petition challenging the order terminating the Petitioner's services has observed as follows;

"The employer is not allowed to hire and fire even if the employee, maybe ad hoc or probationer, and the services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding a regular inquiry in accordance with the principles of natural justice."

14. Only Use Of Motor Vehicle Required To Be Established U/S 163A MVA; Need Not Prove Someone Else Was Driving Negligently: Gujarat High Court

Case Title: SONALBEN BHANABHAI TADVI-MINOR THROUGH UNCLE & 2 other(s) Versus MADHUBEN BHAGUBHAI TADVI & 1 other(s)

Citation: 2022 LiveLaw (Guj) 39

Affirming that it is not necessary under Section 163A of the Motor Vehicles Act to prove that somebody else was driving the vehicle rashly and negligently which resulted in the death of the victim, the Gujarat High Court has imposed liability on the insurance company to pay compensation to the family of the deceased.

The Bench comprising Justice Sandeep N Bhatt ordered this in connection with the First Appeal filed under Section 173 of the MV Act by the Appellants who were dissatisfied with the award of the Motor Accident Claims Tribunal.