Gujarat High Court Monthly Digest: August 2022 [Citations 301 - 362]

Kamleshkumar Mohanji Methana V/S State Of Gujarat 2022 LiveLaw (Guj) 301

Gulamkadar Kasambhai Shaikh V/S The State Of Gujarat Thru The Principal Secretary 2022 LiveLaw (Guj) 302

State Of Gujarat & 2 Other(s) v. Ravindra S. Shukla & 22 Other(s) 2022 LiveLaw (Guj) 303

Pritiben Chhaganlal Kanjariaya V/S State Of Gujarat & 4 other(s) 2022 LiveLaw (Guj) 304

Poonam Madha Parmar V/S State Of Gujarat 2022 LiveLaw (Guj) 305

Raja Laxman Chopada V/S Aditaya Birala Nova Limited 2022 LiveLaw (Guj) 306

Jerambhai Premjibhai Chauhan (Koli) Through Bhagwanjibhai Premjibhai Chauhan (Koli) V/S State Of Gujarat 2022 LiveLaw (Guj) 307

Ushaben Dayashankar Shukla V/S State Of Gujarat 2022 LiveLaw (Guj) 308

Ambe Public School V/S State Of Gujarat 2022 LiveLaw (Guj) 309

Savitaben Mangalbhai Parmar V/S State Of Gujarat 2022 LiveLaw (Guj) 310

Akil Valibhai Piplodwala V/S Central Government 2022 LiveLaw (Guj) 311

Gujarat Insecticides Ltd. & 1 other(s) v. Presiding Officer & 2 Other(s) 2022 LiveLaw (Guj) 312

Shambhavi Kumari V/S Sabarmati University & 3 other(s) 2022 LiveLaw (Guj) 313

M/s Louis Dreyfus Company India Private Limited v. Union Of India 2022 LiveLaw (Guj) 314

Santram Spinners Limited V/S Babubhai Magandas Patel 2022 LiveLaw (Guj) 315

Salimbhai Ibrahimbhai Mir V/S State Of Gujarat 2022 LiveLaw (Guj) 316

Ajitsingh Jagan Singh Yaduvanshi V/S State Of Gujarat 2022 LiveLaw (Guj) 317

Yogesh Lakhmanbhai Chovatiya V/S Pgvcl Through The Deputy Engineer 2022 LiveLaw (Guj) 318

Parth Krishnkant Patel V/S Managing Director/ General Manager (Legal Cell) 2022 LiveLaw (Guj) 319

Shambhubhai Devrajbhai Jaru V/S State Of Gujarat 2022 LiveLaw (Guj) 320

Bipinchandra Babulal Thakkar V/S Govindbhai M Prajapati 2022 LiveLaw (Guj) 321

Minalben Satishbhai Solanki V/S State Of Gujarat 2022 LiveLaw (Guj) 322

Oza Nikun Dashrathbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 323

Idea Cellular Limited & 1 Other(S) V/S Union Of India Thro Director & 1 other(s) 2022 LiveLaw (Guj) 324

Dipakkumar Nathabhai Patel V/S Narmadaben Dhirajlal Radadia & 2 other(s) 2022 LiveLaw (Guj) 325

Jayesh Manharlal Gandhi V/S State Of Gujarat 2022 LiveLaw (Guj) 326

Chief Executive & 1 Other(S) V/S Vanjibhai Laljibhai Chaudhary 2022 LiveLaw (Guj) 327

Rameshbhai Bhathibhai Pagi V/S Deputy Executive Engineer 2022 LiveLaw (Guj) 328

X v/s Indext/C Industrial Extension Cottage & 1 other(s) 2022 LiveLaw (Guj) 329

Shaileshbhai Kandubhai Rathwa V/S Gurjar Shankarlal Devalal 2022 LiveLaw (Guj) 330

M/S Harsh Transport Private V/S Union Of India 2022 LiveLaw (Guj) 331

Dhavalkumar Ashokbhai Aghera v/s Reliance General Insurance Co. Ltd. 2022 LiveLaw (Guj) 332

State Of Gujarat Versus Balvantsinh Amarsinh Raj 2022 LiveLaw (Guj) 333

Rekhaben Shashikant Gade V/S State Of Gujarat & 4 other(s) 2022 LiveLaw (Guj) 334

Kumanbhai Chatrabhjubhaihujbhadaraniya & 18 other(s) v/s Manavadar Municipality & 14 other(s) 2022 LiveLaw (Guj) 335

Pruthvirajsinh Bhagirathsinh Jadeja v/s State Of Gujarat & 2 other(s) 2022 LiveLaw (Guj) 336

Jigar Bharatsingh Kshatriya V/S State Of Gujarat 2022 LiveLaw (Guj) 337

Pragnesh Harshadbhai Patel @ P.G. @ Pragnesh Gota v/s State Of Gujarat 2022 LiveLaw (Guj) 338

Jaferkhan Allarakabhai Radhanpuri V/S Dholka Nagar Palika 2022 LiveLaw (Guj) 339

Mohmed Hasan Aslam Kaliwala Versus State Of Gujarat 2022 LiveLaw (Guj) 340

Chandrikaben Hargovinddas Parmar W/O Jayprakash Nareshkumar Joshi v. Jaiprakash Nareshbhai Joshi 2022 LiveLaw (Guj) 341

Paavanbhai Jagdishbhai Panchal v. State Of Gujarat 2022 LiveLaw (Guj) 342

Century Tiles Through Director Ganpatbhai Dahyabhai Patel v. The Deputy Collector & 2 other(s) 2022 LiveLaw (Guj) 343

Ibrahim Ahmed Patel v. Vinodkumar Bhanabhai Parmar 2022 LiveLaw (Guj) 344

Gangaben Parbatbhai Vaza v. State Of Gujarat 2022 LiveLaw (Guj) 345

State Of Gujarat v. Pratap Prabhuram Devasi 2022 LiveLaw (Guj) 346

Hirabhai Kanchanlal Modi & 8 Other(S) V/S Registrar, Cooperative Societies & 1 other(s) 2022 LiveLaw (Guj) 347

Premnarayan Mewalal Giri V/S State Of Gujarat 2022 LiveLaw (Guj) 348

Mansi Jimit Sanghav V/S State Of Gujarat 2022 LiveLaw (Guj) 349

Sonal Aashish Madhapariya V/S Aashish Harjibhai Madhapariya 2022 LiveLaw (Guj) 350

Savitaben Mangalbhai Harijan V/S Superintendent 2022 LiveLaw (Guj) 351

Dajabhai S/O Lumbabhai V/S Mancharam Dwarkadas Sadhu 2022 LiveLaw (Guj) 352

Yakubbhai Ibrahimbhai Shanker V/S State Of Gujarat 2022 LiveLaw (Guj) 353

Manishkumar Rameshchandra Parekh V/S State Of Gujarat 2022 LiveLaw (Guj) 354

State Of Gujarat v/s Thakore Chamanji Motiji & 3 other(s) 2022 LiveLaw (Guj) 355

Patel Bhaveshkumar Chandrakantbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 356

Dhansukhlal Rambhai Patel & 1 Other(S) V/S Dhansukhlal Nagindas Kapadia 2022 LiveLaw (Guj) 357

Jayrajsinh Madhubha Gadhvi v/s State Of Gujarat 2022 LiveLaw (Guj) 358

Rajesh Sukamaran Nambiar V/S The Central Bank Of India Through The Chief Manager 2022 LiveLaw (Guj) 359

Vimalaben Prabhunath Misra V/S Ketan Chandravadan Soni 2022 LiveLaw (Guj) 360

Bank Of Baroda V/S Harshadgiri Chanchalgiri Goswami 2022 LiveLaw (Guj) 361

Ramesh Babubhai Patel Versus State Of Gujarat 2022 LiveLaw (Guj) 362

JUDGMENTS/ORDERS OF THE MONTH

Cases Of Civil Nature Can Be 'Quashed' In Interest Of Justice: Gujarat High Court Reiterates Distinction B/w Sections 320 & 482 CrPC

Case Title.: Kamleshkumar Mohanji Methana V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 301

While allowing a revision application under Section 397 of CrPC seeking quashing of a judgement convicting the Petitioner under Section 138 of Negotiable Instruments Act, the Gujarat High Court reiterated the distinction between Sections 482 and Sec 320 of the Code.

Section 320 CrPC prescribes power of Court to compound certain offences. Section 482 CrPC is inherent power of High Court. The Bench of Justice Samir Dave emphasized that compounding of offences is not the same as quashing. It reiterated:

"In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment."

Reimbursement Of Medical Claim By Govt Employees Should Not Be Denied Mechanically: Gujarat High Court Reiterates

Case Title: Gulamkadar Kasambhai Shaikh v. The State Of Gujarat Thru The Principal Secretary

Citation: 2022 LiveLaw (Guj) 302

The Gujarat High Court has reiterated that a Government employee is entitled to avail the benefits of medical facilities without any fetters, and that their claim for reimbursement should not be denied by the State mechanically.

The Bench of Justice Biren Vaishnav extensively relied on the decision of a Coordinate Bench in Chanrakant Kantilal Dave v. State of Gujarat to order full reimbursement of expenses borne by the Petitioner herein during his Angioplasty. The bench reiterated:

"It is a settled legal position that the Government employee during his lifetime or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated."

[De-Recognition Of Private School] DEO Required To Take Steps To Declare Eligible Employees 'Surplus' & Absorb Them In Other Schools: Gujarat HC

Case Title: State Of Gujarat & 2 Other(s) v. Ravindra S. Shukla & 22 Other(s)

Citation: 2022 LiveLaw (Guj) 303

The Gujarat High Court has made it clear that where any private school is de-recognized, the District Educational Officer is required to take steps for declaring the eligible school staff as 'surplus' and absorb them in other schools.

The clarification comes in light of a State policy that whenever the employees of private secondary school are required to be retrenched either due to the closure of classes or due to the closure of school, if they fulfill the criteria prescribed in the G.R.s then they are not required to face actual termination, but by declaring them surplus Government of Gujarat extends protection to their services and they are absorbed in any other aided registered private secondary school.

[Anganwadi Promotions] Date On Which Procedure Commences & Not When Resolutions Are Framed Is Relevant For Deciding Entitlement: Gujarat High Court

Case Title: Pritiben Chhaganlal Kanjariaya v. State Of Gujarat & 4 other(s)

Citation: 2022 LiveLaw (Guj) 304

The Gujarat High Court has dismissed a petition filed by Anganwadi workers alleging that they were not promoted to the post of 'Mukhya Sevika' on account of discrimination between those working at the District Panchayat level and those working under the Municipal Corporation.

It was alleged that Anganwadi Workers from District Panchayats were elevated to the aforesaid post while those from the Municipal Corporation were deemed ineligible.

S.173(8) CrPC | Power Of Further Investigation Available Upto "Pre-Trial Stage" & Not Beyond That: Gujarat High Court

Case Title: Poonam Madha Parmar v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 305

The Gujarat High Court has held that the power of Court to direct further investigation under Section 173(8) of CrPC is available only up to "pre-trial stage" and once the trial commences, such power cannot be exercised. Justice Ashokkumar Joshi also reiterated:

"It is trite principle of law that with a view to fill up the lacunae in investigation, such powers of directing further investigation cannot be exercised…"

Workmen Challenging Their Alleged Termination Can Be Directed To Deposit Ex-Gratia Compensation Until Final Disposal: Gujarat High Court

Case Title: Raja Laxman Chopada v. Aditaya Birala Nova Limited

Citation: 2022 LiveLaw (Guj) 306

The Gujarat High Court has held that where the disengagement of workmen by an employer is under dispute, the former claiming illegal termination and the latter asserting voluntary resignation arrangement, the Labour Court may direct deposit of ex-gratia amount in the interim.

Justice Biren Vaishnav thus upheld a Labour Court's decision directing the workmen to deposit the ex-gratia amount until final disposal of the dispute between the parties.

Numerous Preventive Detention Orders Passed Day In & Day Out Relying On "Stale Material": Gujarat High Court Grants Relief To NDPS Accused

Case Title: Jerambhai Premjibhai Chauhan (Koli) Through Bhagwanjibhai Premjibhai Chauhan (Koli) v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 307

The Gujarat High Court expressed strong displeasure at the detaining authority under the Gujarat Prevention of Anti Social Activities Act, 1985 for passing numerous detention orders "day in and day out" by merely relying on "stale material" against a person.

The Bench comprising Justice SH Vora and Justice Rajendra Sareen observed,

"Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act...without drawing distinction between "law and order" problem and "public order" problem as mentioned under the PASA Act."

Medical Reimbursement Guaranteed Under Right To Life: Gujarat High Court Provides Relief To Retd. Teacher Of Grant-In-Aid Primary School

Case Title: Ushaben Dayashankar Shukla v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 308

The Gujarat High Court directed the State authorities to reimburse the medical expenses for the pacemaker implantation undergone by a retired primary school teacher ('Petitioner'), observing that medical reimbursement is a right guaranteed as a right to life.

The Bench of Justice Biren Vaishnav held that the Petitioner would be entitled to reimbursement under Gujarat Civil Service (Medical Treatment) Rules, 2015.

Art.19(1)(g)| Fee Revision Committee Can Verify Expenditure But Can't Sit In Management's Chair To Determine Fee Structure Of Self-Financed School: Gujarat HC

Case Title: Ambe Public School v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 309

The Gujarat High Court has recently cautioned the Fee Revisional Committee ('FRC') that it should keep in mind the fundamental rights of the Self-Financed Schools under Article 19(1)(g) to run and charge fees as they deem fit.

While the FRC must see that such fee does not amount to profiteering by schools, it cannot 'sit in the chair of the Management' to determine the fee structure because each school has its own unique method of imparting education, Justice Bhargav Karia said.

Bullet Train Project | Wild Allegations Of Fraud In Distribution Of Compensation Without Cogent Material: Gujarat HC Refuses To Exercise Writ Jurisdiction

Case Title: Savitaben Mangalbhai Parmar v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 310

The Gujarat High Court declined to exercise its extraordinary writ jurisdiction in a petition seeking equal distribution of compensation as per Sec 31(2)(b) in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri observed that the Petitioners alleging mischief on behalf of the State authorities should have initiated proceedings before appropriate forum when they first became aware of the mischief. However, the instant petition was filed a year later without cogent material or clear pleadings.

Citizenship Exclusive Domain Of Centre, Civil Court Has No Jurisdiction To Decide Question Of Renunciation: Gujarat High Court

Case Title: Akil Valibhai Piplodwala v. Central Government

Citation: 2022 LiveLaw (Guj) 311

The Gujarat High Court has made it clear that civil courts have no jurisdiction to entertain and decide the question about citizenship of a person and that the said question falls within the exclusive domain of the Central government.

Justice Nisha Thakore held thus in context of Section 9(2) of the Citizenship Act 1955 which provides that question whether any citizen of India has acquired the citizenship of another country shall be deter­mined by the prescribed authority.

Person Working In Supervisory Capacity Cannot Raise "Industrial Dispute": Gujarat High Court Quashes Reinstatement Order

Case Title: Gujarat Insecticides Ltd. & 1 other(s) v. Presiding Officer & 2 Other(s)

Citation: 2022 LiveLaw (Guj) 312

The Gujarat High Court has reiterated that a person working in "supervisory" capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.

The Bench comprising Justice AY Kogje further made it clear that while deciding whether such person is a workman or not, the Labour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the workman and the management employee.

Writ Petition Against Private University Not Maintainable, Remedy For Alleged Arbitrary Termination Lies Under Civil Law: Gujarat High Court

Case Title: Shambhavi Kumari V/S Sabarmati University & 3 other(s)

Citation: 2022 LiveLaw (Guj) 313

The Gujarat High Court has declined to intervene in a writ petition seeking reinstatement with full backwages and benefits filed by an Assistant Professor against the Sabarmati University, a private university. Justice Bhargav Karia clarified that the dispute regarding termination was 'in the realm of a private contract' and therefore, held:

"…if at all there is an alleged arbitrary action on the part of the respondent, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition against the private educational institution governed by the Gujarat Private Universities Act, 2009 would not be maintainable."

Gujarat High Court Directs CBIC To Refund IGST On Ocean Freight

Case Title: M/s Louis Dreyfus Company India Private Limited v. Union Of India

Citation: 2022 LiveLaw (Guj) 314

The Gujarat High Court has directed the Central Board of Indirect Taxes and Customs (CBIC) to refund the Integrated Goods and Service Tax (IGST) on ocean freight within six weeks along with the statutory rate of interest.

The division bench of Justice N.V. Anjaria and Justice Bhargav D. Karia has relied on the decision of the Supreme Court in the case of Mohit Minerals Pvt. Ltd. vs. Union of India in which GST on ocean freight was struck down.

Industrial Dispute Act| Person Working in the Capacity of 'Consultant' Cannot Be Deemed 'Workman': Guj HC Quashes Reinstatement Order

Case Title: Santram Spinners Limited V/S Babubhai Magandas Patel

Citation: 2022 LiveLaw (Guj) 315

The Gujarat High Court has struck down the order of the Labour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% backwages in the Petitioner-institute. The High Court, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary. The same had been ignored by the Labour Court.

Gujarat High Court Grants Anticipatory Bail To 62 Yrs Old POCSO Accused Citing "Improvements" In Minor Prosecutrix's Version

Case Title: Salimbhai Ibrahimbhai Mir V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 316

The Gujarat High Court has granted anticipatory bail to a 62-year-old, accused of sexuall assaulting a 17 years old after intoxicating her.

The man was booked under Sections 363, 366 and 376 IPC and Sections 4, 6 and 8 of the POCSO Act.

While granting relief, the High Court took into account several factors such as improvement in Prosecutrix's version, subsequent conduct of the accused, etc.

Court Must Be Satisfied Of Prima Facie Case Against Accused While Framing Charges, Reasons Not To Be Recorded: Gujarat High Court

Case Title: Ajitsingh Jagan Singh Yaduvanshi V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 317

The Gujarat High Court has held that only a prima facie involvement of the accused in an alleged crime is required for framing of charges and the Court need not make an evaluation of evidence or record reasons for the same.

Justice Samir Dave referred to Omwati Vs. State (Delhi Administration) 2001 AAR 394 (SC) to reiterate the circumstances in which the Court may discharge the Accused:

"(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.

(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage."

Electricity Connection Cannot Be Denied Only Because Dispute Regarding Ownership Of Land Is Pending: Gujarat High Court

Case Title: Yogesh Lakhmanbhai Chovatiya V/S Pgvcl Through The Deputy Engineer

Citation: 2022 LiveLaw (Guj) 318

The Gujarat High Court has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.

Justice AS Supehia referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

Electricity Company Does Not Require Landowner's Consent For Laying Down Overhead Transmission Lines: Gujarat High Court

Case Title: Parth Krishnkant Patel V/S Managing Director/ General Manager (Legal Cell)

Citation: 2022 LiveLaw (Guj) 319

The Gujarat High Court has held that an electricity company does not require the consent of a private landowner to lay overhead high tension transmission lines and that at most, such landowner may claim compensation for any damage that may be sustained during the process.

A single Bench of Justice Biren Vaishnav heavily relied on a division bench judgment in Gujarat State Electricity Transmission Corporation Ltd., Vs. Ratilal Maganji Brahmbhatt which held that:

"The Electricity Act, 2003, is a progressive enactment, with a specific purpose of providing electricity to a large number of people, across the country, to promote industrial and sustainable development in all walks of life. Right of a land owner to possess and enjoy the property, though recognised as a Constitutional Right, under Article 300-A of the Constitution of India, such right has to yield to the Articles 14 and 21 respectively of the Constitution of India, which strive to achieve the Constitutional Goals, enshrined in the basic structure of the Constitution of India."

[Custodial Deaths] Gujarat HC Denies Bail To Gram Rakshak Dal Jawan, Notes Genitals Of Deceased Were Injured With Mobile Charger Cable

Case Title: Shambhubhai Devrajbhai Jaru V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 320

In a case involving custodial deaths of two persons due to alleged police brutality, the Gujarat High Court has declined bail to a Gram Rakshak Dal Jawan (GRD Jawan) discharging duties at the Police Station.

As per the investigation, the deceased were beaten with sticks, belts, fist and kicks, threatened with electric current, rags of inflammable liquid were placed the on their bodies, and their genitals were injured with the mobile charger cable.

Motor Accident Tribunals May Permit Claimants To Prematurely Withdraw Compensation From FD To Meet "Personal Exigencies Of Life": Gujarat HC

Case Title: Bipinchandra Babulal Thakkar V/S Govindbhai M Prajapati

Citation: 2022 LiveLaw (Guj) 321

The Gujarat High Court has held that Motor Accident Claims Tribunals may permit claimants, whose compensation is invested in fixed deposits, to prematurely withdraw the same to meet the "exigencies of life".

Justice Gita Gopi thus quashed the order of a Tribunal which had rejected the Petitioner's application for premature withdrawal of the Fixed Deposit made in his favour in the Central Bank of India.

Gujarat Mineral Rules | Seized Vehicle Liable To Be Released If FIR For Contravention Not Registered Within 45 Days Of Seizure: High Court

Case Title: Minalben Satishbhai Solanki V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 322

The Gujarat High Court has held that it is obligatory for the investigator to approach the Court of Sessions with a written complaint and seized properties upon expiry of the 45 days period specified under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017.

In the absence of such an exercise, the seized vehicle will have to be released in favour of the person from whom it was seized, without insisting for bank guarantee.

Students Can't Be Faulted For Pharmacy Council's Failure To Approve Medical Stores For Imparting Training: Gujarat HC Grants Relief To Diploma Holders

Case Title: Oza Nikun Dashrathbhai V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 323

The Gujarat High Court has come to the rescue of D.Pharm students who were denied registration as 'Pharmacist' by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the the Pharmacy Practice Regulations, 2015.

A single bench of Justice AS Supehia noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training to the students of Diploma in Pharmacy Course like the present petitioners.

Gujarat High Court Permits 'Idea Cellular' To Submit Soft Copies Of 'Customers Activation Forms' After Originals Destroyed In Fire

Case Title: Idea Cellular Limited & 1 Other(S) V/S Union Of India Thro Director & 1 other(s)

Citation: 2022 LiveLaw (Guj) 324

The Gujarat High Court has asked the Central Government to sympathetically consider the case of Idea Cellular Limited which is unable to submit physical copies of Customers Activation Forms ('CAF') after the same were destroyed in a fire at its warehouse in 2011.

Justice AS Supehia observed:

"It is clarified that since the petitioners are not having original physical copy of such forms, if they are called upon to compare the scanned copy with the physical forms, the same would be an utterly impossible task and cannot be performed and hence, the respondents shall accept the scanned copy of such CAFs having digitally signed by the petitioners."

Arbitrator Cannot Be Appointed Over A 'Dead Cause Of Action' Barred By Law Of Limitation: Gujarat High Court

Case Title: Dipakkumar Nathabhai Patel V/S Narmadaben Dhirajlal Radadia & 2 other(s)

Citation: 2022 LiveLaw (Guj) 325

The Gujarat High Court has held that a party cannot be allowed to seek appointment of arbitrator over a "dead" cause of action or to revive a claim which is barred by the Law of Limitation.

"Normally the issue of limitation being question of fact/s and the Law governing the same would be procedural, it would always be open for the Arbitral Tribunal to decide based on the facts that may be unfolded in a given case. However, this Court exercising the power of referring the dispute to arbitration, would refuse to do so when it is manifest that claims are ex-facie time barred and dead or there is no subsisting dispute," Chief Justice Aravind Kumar observed.

Gujarat High Court Allows 'Habeas Corpus' Petition By Younger Son Seeking Parents' Custody From Elder Brother

Case Title: Jayesh Manharlal Gandhi V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 326

The Gujarat High Court handed over the custody of an old and ailing couple to their younger son in a habeas corpus petition filed by the latter alleging mis-treatment and illegal detention of his parents by his elder brother, the Respondent.

A division bench of Justices Vipul Pancholi and Sandeep Bhatt expressed shock at the Respondent's conduct in chambers, labelling his mother as a "villain".

Non-Renewal Of Contract During Probation Does Not Amount To 'Retrenchment' Under Industrial Disputes Act: Gujarat High Court

Case Title: Chief Executive & 1 Other(S) V/S Vanjibhai Laljibhai Chaudhary

Citation: 2022 LiveLaw (Guj) 327

The Gujarat High Court held that termination of service because of non-extension of probation does not amount to 'retrenchment' under Section 2(oo)(bb) of the Industrial Disputes Act.

Consequently, Justice Biren Vaishnav set aside an order of the Labour Court reinstating the Respondent-workman to the position of a 'Community-Organiser-Cum-Trainee' in the Petitioner-Trust.

"Viewed from the definition of "retrenchment" defining Section 2 (oo) (bb), the `term' excludes termination of service of a workman as a result of nonrenewal of a contract of the employment or termination on expiry in view of a stipulation as contained in the order therein."

Industrial Disputes Act | Violation Of Retrenchment Procedure U/S 25F & 25G Warrants Reinstatement, Not Mere Compensation: Gujarat HC

Case Title: Rameshbhai Bhathibhai Pagi V/S Deputy Executive Engineer

Citation: 2022 LiveLaw (Guj) 328

The Gujarat High Court has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated, reinstatement of workman ought to follow.

The Bench comprising Justice Biren Vaishnav was hearing several petitions challenging the Labour Court's order wherein compensation of Rs. 72,000 was awarded to each of the Petitioner-workmen rather than reinstatement with backwages.

Workman Who Consents For Contractual Engagement Can't Turn Around & Seek Benefit U/S 25F Of Industrial Disputes Act: Gujarat High Court

Case Title: X v/s Indext/C Industrial Extension Cottage & 1 other(s)

Citation: 2022 LiveLaw (Guj) 329

The Gujarat High Court has reiterated that when there is a specific condition provided in the consent letter of employment that the appointment is on contract basis, then such workman cannot claim any benefit by contending that the Respondent establishment had breached Section 25(F) of the Industrial Disputes Act.

The Petitioner, claiming to be sexually harassed by her immediate superior, was agitating an order of the Labour Court by averring that the Labour Court should have held that the contractual appointment was a mere 'camouflage' and she was entitled to retrenchment compensation.

Motor Accident Claims | Child Victim Can't Be Equated To Non-Earning Adult, Must Be Compensated Under Non-Pecuniary Heads: Gujarat HC Reiterates

Case Title: Shaileshbhai Kandubhai Rathwa V/S Gurjar Shankarlal Devalal

Citation: 2022 LiveLaw (Guj) 330

The Gujarat High Court has reiterated that children who are victims of motor accidents stand on a different footing from non-earning adults in matter of compensation.

Recalling the Supreme Court's observations in Mallikarjun v/s Divisional Manager, National Insurance Company Limited, the Bench comprising Justice Gita Gopi added that compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability.

Railway Tribunal Has Jurisdiction To Adjudicate Disputes Regarding Freight For Carriage Of Goods: Gujarat HC Refuses To Exercise Writ Jurisdiction

Case title: M/S Harsh Transport Private V/S Union Of India

Citation: 2022 LiveLaw (Guj) 331

The Gujarat High Court has held that Railway Claims Tribunal is competent to adjudicate disputes regarding freight for carriage of goods and any dispute with regard to the same, including imposition of punitive charges.

The observation was made by Justice AS Supehia while hearing a writ petition raising a dispute with regard to freight charge demanded by the Railways from the petitioner between two stations. It was the case of the petitioner that it has paid regular freight charges to the Railway and the same were also accepted, and later on an extra freight charge was created.

Motor Accident | Literate Claimants Can Exercise Discretion, Tribunals Must Avoid Investing Their Money In FDRs Without Recording Reasons: Gujarat HC

Case Title: Dhavalkumar Ashokbhai Aghera v/s Reliance General Insurance Co. Ltd.

Citation: 2022 LiveLaw (Guj) 332

The Gujarat High Court has permitted the premature withdrawal of Fixed Deposit Receipt of the compensation awarded in Motor Accidents Claims to an Air Force person who intended to purchase a house for his permanent residence. Justice Gita Gopi stated:

"The deposited money are of the claimants. The literates can prudently exercise discretion, manage their funds and can individually decide about systematic planning for investing the money...In case of literate person, the Tribunal is required to give relaxation by not adopting pedantic approach of investing the money in long term FDR without recording reasons for investing the money in long term deposits."

Possession/ Ownership Of Property Relevant Consideration For Proceedings Against Electricity Theft: Gujarat High Court

Case Title: State Of Gujarat Versus Balvantsinh Amarsinh Raj

Citation: 2022 LiveLaw (Guj) 333

The Gujarat High Court upheld the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that ownership/ possession of the property in question has to be factored into consideration.

Justice Ashokkumar Joshi rejected the State's appeal on several grounds, including the fact that the Police did not call for any certificate or documents to show the possession or ownership of accused for the so-called place of occurrence.

Bullet Train Project | High Court Cannot Usurp Powers Of Statutory Authority Under Fair Compensation In Land Acquisition Act: Gujarat HC

Case Title: Rekhaben Shashikant Gade V/S State Of Gujarat & 4 other(s)

Citation: 2022 LiveLaw (Guj) 334

The Gujarat High Court has emphasised that Chapter VIII of the Land Acquisition Act has prescribed the establishment of the Land Acquisition Rehabilitation and Resettlement Authority which is 'couched with appropriate powers' to examine the issues which may arise in the process of land acquisition and compensation distribution.

Accordingly, the Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri refused to entertain the writ petition moved by a woman seeking compensation for a property, purportedly owned by her at the time, acquired by the government for its 'Bullet Train Project'.

Merely Because Some Benefit Accrued To Litigant Due To Interim Order, They Cannot Claim Such Benefits When Litigation Ends Against Them: Gujarat HC

Case Title: Kumanbhai Chatrabhjubhaihujbhadaraniya & 18 other(s) v/s Manavadar Municipality & 14 other(s)

Citation: 2022 LiveLaw (Guj) 335

The Gujarat High Court has clarified that merely because of some benefit has accrued to the litigant because of operation of interim orders, the litigant cannot claim such benefits when the litigation finally ends against them.

Considering this well-settled principle of law, Justice Biren Vaishnav declined to entertain a second appeal challenging the order of the Appellate Court in order to seek reinstatement in the Municipal Corporation. Justice Vaishnav upheld the order of the Trial Court and the First Appellate Court by affirming:

"What is therefore evident is that no fault can be found inasmuch as the Trial Court as well as the Appellate Court committed no error in holding that the Civil Court has no jurisdiction to entertain a civil suit under section 9 of the Code of Civil Procedure in the face of the provisions of the Industrial Disputes Act,1947."

Person Not Appearing & Pleading Before Courts Not An "Advocate", Mere Enrollment With Bar Council Is Of No Consequence: Gujarat High Court

Case Title: Pruthvirajsinh Bhagirathsinh Jadeja v/s State Of Gujarat & 2 other(s)

Citation: 2022 LiveLaw (Guj) 336

The Gujarat High Court has reiterated that a lawyer who does not appear and plead before courts cannot designate himself as an "Advocate" even if he is enrolled with the Bar Council.

It added that as per the Advocates Act and the Bar Council Rules, once the terms of employment do not require an advocate to plead and appear before the Courts, then during this period of employment, a person cannot be termed as an 'Advocate' because he is not practising as one.

Lok Rakshak Recruitment | Courts Cannot Ascertain Correctness Of Answer Keys, Must Be Left To Experts: Gujarat High Court

Case Title: Jigar Bharatsingh Kshatriya V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 337

The Gujarat High Court has held that it is not open for the Court to undertake the task of ascertaining the correctness of examination answer keys and the same must be left to the discretion of field experts.

"Whichever option is chosen, there will be some candidates who are likely to suffer," Justice Biren Vaishnav said while rejecting a petition assailing the correctness of the answer keys of examinations held for the posts of Lok Rakshaks (Class-III). The Single Judge Bench reiterated:

"…when there are conflicting views, judges are not expected to act as experts in the fields and overstep."

Prosecutrix Travelling & Enjoying Hospitality Of Accused After Alleging Rape Belies The Allegations: Gujarat High Court Grants Bail

Case Title: Pragnesh Harshadbhai Patel @ P.G. @ Pragnesh Gota v/s State Of Gujarat

Citation: 2022 LiveLaw (Guj) 338

The Gujarat High Court granted bail to a man accused of participating in gang-rape of the prosecutrix, after noting that the latter was on very friendly terms with the accused and even after levelling such grave allegations, she had been travelling with him and had been enjoying his hospitality.

Justice Rajendra Sareen observed,

"The facts narrated hereinabove prima facie reveal that the first informant was on very friendly terms with the applicant. It also appears that allegation of rape appears to be unjustified, since all the while the first informant, had been enjoying the hospitality of the applicant and other accused, as the case may be, and there does not appear to be any justification for the first informant in continuously accepting the hospitality of the accused, when according to the first informant, she was being subjected to such a heinous crime."

Statutory Power Of Authority Not Diluted Merely By Mention Of Wrong Provision While Exercising Such Power: Gujarat High Court

Case Title: Jaferkhan Allarakabhai Radhanpuri V/S Dholka Nagar Palika

Citation: 2022 LiveLaw (Guj) 339

The Gujarat High Court has reiterated that merely because a wrong provision is quoted by the authority for exercising its power, it would not invalidate the order if it is shown that such an order could otherwise be passed under other provisions of the statute.

Accordingly, Justice AS Supehia declined to quash an order of eviction against the writ petitioner by holding:

"The petitioner has no right to keep on occupying the property of the respondent Nagarpalika even after the demise of his father, to whom the property was given on rent for 11 months in the year 1971. The provisions of the Eviction Act has been precisely invoked in the case of the petitioner and hence, no interference by this Court is necessitated."

Gujarat High Court Grants Bail To Person Alleged Of Creating Fictitious Entity To Pass Ineligible ITC

Citation: Mohmed Hasan Aslam Kaliwala Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 340

The Gujarat High Court has granted bail to a person alleged to have created a fictitious entity to pass an ineligible Input Tax Credit (ITC).

The single bench of Justice Ilesh J. Vora has directed the release of the applicant on bail, subjected to a deposition of Rs. 2 crore before the office of the Deputy Commissioner of State Tax, Division 8, Enforcement, Surat within a period of 2 months from the applicant's release.

Gujarat High Court Refuses Custody Of 2-Yr-Old To Mother Citing Voluntary Desertion, Child's Attachment To Father, Her Busy Work Schedule

Case Title: Chandrikaben Hargovinddas Parmar W/O Jayprakash Nareshkumar Joshi V/S Jaiprakash Nareshbhai Joshi

Citation: 2022 LiveLaw (Guj) 341

The Gujarat High Court declined custody of a minor son to his mother on the ground that her work schedule did not permit her to take care of the child as compared to the work schedule of the father.

Further, Justice Umesh Trivedi, while applying the principle of paramount interest of child, opined that the Appellant-mother had a step-mother and it was doubtful whether she would take care of the minor son.

'Allegations Of General Nature': Gujarat HC Quashes FIR Against Husband's Distant Relative Accused Of Taunting Complainant For Not Bringing Dowry

Case Title: Paavanbhai Jagdishbhai Panchal V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 342

The Gujarat High Court quashed proceedings for the offence of dowry harassment against a distant relative of the complainant's husband, observing that no specific incidents were alleged in the entire FIR and the allegation against him was purely "general in nature".

"Considering the fact that the applicant happens to be the distant relative of the husband of the complainant, it seems that the impugned order is nothing but an attempt to falsely implicate the applicant as accused just with a view to harass the applicant. The allegation against the applicant is purely of general in nature and considering the fact that the applicant stays at a different place, the registration of impugned FIR against the applicant is nothing but an abuse of process of law," Justice Nirzar Desai said.

Impounding Of Instrument Sine Qua Non For Imposing Duty Under Bombay Stamp Act: Gujarat High Court

Case Title: Century Tiles Through Director Ganpatbhai Dahyabhai Patel V/S The Deputy Collector & 2 other(s)

Citation: 2022 LiveLaw (Guj) 343

The Gujarat High Court has clarified that only after an instrument is lawfully impounded that the jurisdiction would vest in Stamp authorities to proceed under Section 33 and 39 of the Bombay Stamp Act for the purpose of charging document and assessing the same for stamp duty.

Justice AS Supehia, while relying on Tata Tele Services Limited Vs State of Gujarat, reiterated:

"Impounding of the instrument is sine qua non for exercise of the powers."

Motor Accident Death | Compensation Must Balance Fiscal Conditions Of Country Where Deceased Earned & Place Where Kin Live: Gujarat High Court

Case Title: Ibrahim Ahmed Patel v. Vinodkumar Bhanabhai Parmar

Citation: 2022 LiveLaw (Guj) 344

The Gujarat High Court enhanced the compensation granted by the Motor Accident Claims Tribunal to the kin of a deceased victim, who was earning in foreign currency prior to his death.

The Bench comprising Justices AJ Desai and Mauna Bhatt relied on Supreme Court's decision in United India Insurance Co. Ltd. & ors. vs. Patricia Jean Mahajan & Ors. [(2002) 6 SCC 281] where it was held:

"Where there is so much of disparity in the economic conditions and affluence of the two places viz. The place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne."

Revisional Power Can't Be Invoked With Unclean Hands: Gujarat HC Upholds Rejection Of Caste Abuse Complaint In Counterblast To Electricity Theft Case

Case Title: Gangaben Parbatbhai Vaza V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 345

The Gujarat High Court has affirmed the decision of the Sessions Court rejecting the complaint under the SC/ST (Prevention of Atrocities) Act on the ground that the Petitioner had not approached the court with 'clean hands' and was accused of theft of electricity.

Justice Samir Dave opined:

"It is settled law that the revisional powers of the High Court can only be exercised to prevent the abuse of the process of law and to secure the ends of justice. The process of law can be invoked by a principled and really aggrieved person who approaches the court with clean hands."

It added,

"The process of law cannot be allowed to be abused by a person who is facing trial for theft of Electricity and who himself avers such facts in his application under Section 156 (3) Cr.P.C., as indicate that he is guilty of committing theft of Electricity; by making baseless allegations against the officials of a PGVCL without any supporting material or evidence. Apparently, the revisionist has filed that complaint in order to put a counter pressure on the officials for taking undue advantage in plural cases of theft of electricity lodged against the complainant."

'No Shout For Help': Gujarat High Court Upholds Acquittal Of POCSO Accused, Disbelieves Prosecutrix's Birth Certificate

Case Title: State Of Gujarat V/S Pratap Prabhuram Devasi

Citation: 2022 LiveLaw (Guj) 346

The Gujarat High Court has upheld the acquittal of an accused under the POCSO Act on the ground that the victim's allegations were unreliable and contained several omissions and contradictions.

While dismissing the State's appeal, a bench of Justice SH Vora and Justice Rajendra Sareen noted that at the time of alleged incident, both brothers of the prosecutrix were at home but, she did not shout for help. "Not only that, she did not disclose to any of her relatives, who came at her home despite she was asked."

Show Cause Notice U/S 93 Gujarat Cooperative Societies Act Can't Be Issued For Transactions Prior To 5 Yrs From Date Of Inquiry: High Court

Case Title: Hirabhai Kanchanlal Modi & 8 Other(S) V/S Registrar, Cooperative Societies & 1 other(s)

Citation: 2022 LiveLaw (Guj) 347

The Gujarat High Court, while exercising its extraordinary jurisdiction, has held that the show cause notice issued by the Registrar, Cooperative Societies under Section 93 of the Gujarat Cooperative Societies Act is not maintainable against the writ applicants on grounds of delay.

The Bench comprising Justice Vaibhavi Nanavati noted that the writ-applicants were Chairman/ Managing Directors in the Ankleshwar Nagrik Sahakari Bank Limited in 2004. Since then, the Bank came to be closed and liquidated in November 2004 and all the relevant transactions pertained to a period before 2004. The impugned show cause notice was issued in July 2011 for transactions older than five years. Accordingly, the Single Judge Bench opined:

"The show cause notice which came to be issued by the respondent authority is also an undisputedly dated 26.07.2011. Therefore, all the transaction alleged against the writ applicants are beyond the period of five years from the date of show cause notice i.e. 26.07.2011 and also from the date of inquiry report i.e. dated 07.06.2011."

Licensing Authority Cannot Discriminate Between Co-Accused Persons In Renewal Of Their Arms Licenses: Gujarat High Court

Case Title: Premnarayan Mewalal Giri V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 348

The Gujarat High Court has held that a licensing authority under the Arms Act cannot discriminate between two persons, who were co-accused in the same matter, by renewing the license of one of them and refusing the same treatment to the other citing criminal antecedents.

Justice AS Supehia held so while deciding the case of a Petitioner whose renewal application under the Act was declined citing criminal offence registered against him under Sections 323, 294B, 506(1) and 114 of IPC.

High Court Can Grant "Transit Anticipatory Bail" To Person Apprehending Arrest Even In Absence Of FIR: Gujarat HC

Case Title: Mansi Jimit Sanghav V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 349

The Gujarat High Court has made it clear that a person apprehending arrest can seek "transit anticipatory bail" so as to obtain time to approach the competent Court having territorial jurisdiction in the matter, even in the absence of registration of FIR.

A transit bail is a bail granted by a Court not having jurisdiction over the place where offence was committed. A "transit anticipatory bail" therefore is when a person is apprehending arrest by police of a State other than the State where he/she is presently situated. As the word "transit" suggests, it is an act of being moved or carried from one place to another.

Contempt Proceedings Would Not Lie In Absence Of Positive Act For Wilful Disobedience: Gujarat HC Declines Plea Against UK-Based Litigant

Case Title: Sonal Aashish Madhapariya V/S Aashish Harjibhai Madhapariya

Citation: 2022 LiveLaw (Guj) 350

The Gujarat High Court has recently reiterated that the Court must confine itself in contempt jurisdiction to the four corners of the order alleged to have been disobeyed. It cannot travel beyond the order alleged to have been flouted.

Further, to determine whether an act is contumacious, the Courts cannot apply a 'mechanical' mind and should determine whether 'positive' steps were taken to show wilful disobedience of a judicial order.

Chief Justice Aravind Kumar and Justice Ashutosh Shastri stated:

"…while dealing with the contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigour when disputed questions of facts have arisen and the documents produced are true and genuine being in the realm of adjudication ought to have been taken up for adjudication…"

Reinstatement A Normal Course When S.25(F) ID Act Is Violated, Not Compensation: Gujarat HC Grants Relief To State-Employed Sweeper

Case Title: Savitaben Mangalbhai Harijan V/S Superintendent

Citation: 2022 LiveLaw (Guj) 351

In a recent order, the Gujarat High Court has held that the benefits of reinstatement would be a 'normal course' that ought to follow once there is a violative of Section 25(F) under the Industrial Disputes Act.

Keeping in view this principle, the High Court reinstated, without backwages, the Petitioner who working as a 'sweeper' under the State for 6 years. The Labour Court's award only granting lumpsum compensation to the tune of Rs. 54,000 as was modified to that extent. Justice Biren Vaishnav stated:

"Having therefore found that the Labour Court having positively held that there was violation of Sec.25(F) of the Act, for no fault of the petitioner, the Labour Court proceedings having been prolonged at the instance of the respondents, the petitioner could not have been then deprived of the benefits of reinstatement which is a normal course that ought to have been followed once violation of Sec.25(F) is otherwise proved."

Statement Recorded U/S 161 CrPC Only For Confrontation In Cross Examination, Cannot Replace Evidence: Gujarat HC Upholds Murder Acquittal

Case Title: Dajabhai S/O Lumbabhai V/S Mancharam Dwarkadas Sadhu

Citation: 2022 LiveLaw (Guj) 352

The Gujarat High Court, while reiterating that the statement of a witness recorded by the investigating officer under Section 161 of CrPC does not fall within the ambit of evidence, has upheld the acquittal of a Murder accused.

The Bench comprising Justices SH Vora and Rajendra Sareen explained in the context of the statement recorded by the investigating officer:

"Such evidence is only for confrontation in the cross examination. Statement of witnesses recorded under section 161 of the Code of Criminal Procedure being wholly inadmissible in evidence and cannot be taken into account. As per the settled proposition of law, statement recorded under section 161 of the Code of Criminal Procedure can be used only to prove the contradictions and/or omissions."

No Material To Suggest Conversion By Use Of Force: Gujarat HC Grants Bail To 8 Accused In Bharuch Mass-Conversion Case

Case Title: Yakubbhai Ibrahimbhai Shanker V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 353

The Gujarat High Court has allowed 6 bail pleas filed by 8 persons accused of forcing tribals from Amod town in Gujarat's Bharuch district to convert their religion, upon a prima facie finding that there is no material to conclusively prove that the conversion was caused by the use of force.

"While there is existence of material suggesting allurement, there does not appear to be existence of any material which would suggest conversion by use of force."

Past Service Of Transferred Employees To Be Included For Assessing Promotions, Other Benefits: Gujarat High Court

Case Title: Manishkumar Rameshchandra Parekh V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 354

In a recent order, the Gujarat High Court has affirmed that when a person is transferred on his own request, his past service is counted while granting promotion or higher pay scale, particularly when the same department is involved.

Thus, Justice Biren Vaishnav allowed the petition of workmen who were challenging a resolution of 2017 passed by the Finance Department stating that incumbents who had worked for five years would be considered for seniority, promotion, higher pay and terminal benefits from the initial date of engagement but not from the date of regularisation as was the case of the Petitioner. The bench reiterated:

"In the case before the Supreme Court and of the Division Bench of this Court, the Court held that if the petitioners were transferred to a new department, they may not get seniority but the past experience would count for the purposes of promotion and higher pay scale etc."

[Murder] Unnatural That Complainant Did Nothing To Save Deceased From Accused, Appears To Be False Case Due To Enmity: Gujarat HC Upholds Acquittal

Case Title: State Of Gujarat v/s Thakore Chamanji Motiji & 3 other(s)

Citation: 2022 LiveLaw (Guj) 355

The Gujarat High Court has upheld an order acquitting four persons accused in a Murder case on the ground that there are several material contradictions in the versions presented by the main witnesses and the weapon recovered did not have blood stains to establish the commission of the offence.

A bench of Justices SH Vora and Rajendra Sareen further noted that all witnesses were related to each other and could not deemed as 'independent witnesses.' They had prior enmity with the Accused and were interested in getting them convicted. Thus, it was concluded:

"The evidence of all the main witnesses is contradictory to each other, which is rightly disbelieved by the learned Sessions Judge. As a result, the judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement."

Infraction Of Law Not Done In Systematic Manner May Not Be Sufficient For Preventive Detention: Gujarat High Court

Case Title: Patel Bhaveshkumar Chandrakantbhai V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 356

The Gujarat High Court has held that commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain an accused.

The Bench comprising Justices SH Vora and Rajendra Sareen held:

"No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention."

Relief Of Specific Performance U/S 20 SRA Is No Longer Discretionary After 2018 Amendment: Gujarat High Court

Case Title: Dhansukhlal Rambhai Patel & 1 Other(S) V/S Dhansukhlal Nagindas Kapadia

Citation: 2022 LiveLaw (Guj) 357

The Gujarat High Court has held that the relief of specific performance under Section 20 of the Specific Reliefs Act is no longer discretionary, with notification of the 2018 Amendment Act.

Whereas the unamended Section 20 stipulated that the specific relief "may" be granted at the discretion of the court, the amending Act substitutes Section 20 and renders the specific relief as regular statutory remedy.

Court Cannot Order Registration Of FIR Against Investigating Officer U/S 218 IPC Sans Inquiry: Gujarat High Court

Case Title: Jayrajsinh Madhubha Gadhvi v/s State Of Gujarat

Citation: 2022 LiveLaw (Guj) 358

The Gujarat High Court has clarified that offences under Sections 218 and 219 of the IPC which pertain to a public servant framing incorrect records for saving a person from punishment and making reports in a corrupt manner, cannot be invoked without initiation of inquiry or in absence of any evidence.

In the event that these provisions are wrongly invoked such that they would adversely affect and prejudice the career of the public servant, the High Court can expunge the relevant parts from the judicial order of the Magistrate.

Notice U/S 13(2) SARFAESI Act Not Sufficient For Instituting Legal Challenge, Adjudication Must Await Until S.13(4) Stage: Gujarat HC

Case Title: Rajesh Sukamaran Nambiar V/S The Central Bank Of India Through The Chief Manager

Citation: 2022 LiveLaw (Guj) 359

The Gujarat High Court, while declining to exercise its writ jurisdiction at the stage of issuance of notice under Section 13(2) of the SARFAESI Act, has held that adjudication of matter would have to wait till the stage of Section 13(4) was reached. Thereafter, the aggrieved person can file a securitisation appeal under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal.

Section 13(2) of the Act refers to the issuance of notice to the borrower for discharging his liabilities within 60 days in case of default in payment of debt. While Section 13(4) pertains to declaring the accounts of the borrower as an NPA and thereafter, taking possession of secured assets and appointing a person to manage such assets.

Application For Mutation Of Entry In Revenue Record Does Not Create Encumbrance On Property: Gujarat High Court

Case Title: Vimalaben Prabhunath Misra V/S Ketan Chandravadan Soni

Citation: 2022 LiveLaw (Guj) 360

The Gujarat High Court refused to initiate contempt proceedings against a party to property dispute, said to have wilfully disobeyed court's status quo order by making an application for before the concerned Revenue Authority for mutation of the entry in the revenue record, on the basis of the registered Sale Deed.

The Bench comprising Justice Vipul Pancholi and Justice AP Thaker was of the view that such an application does not breach status quo with regard to the title and the encumbrance of the suit property, in any manner. It said,

"Opponent has neither got the Suit property transferred nor is there any encumbrance created...Just because the opponent made an application for entering her name in the revenue record, it cannot be said that there is willful and intentional disobedience of the order of this Court."

Permanent Part-Time Service Qualifies Under Pension Regulations: Gujarat HC Upholds Payment To Retd. Cleaner At Dena Bank

Case Title: Bank Of Baroda V/S Harshadgiri Chanchalgiri Goswami

Citation: 2022 LiveLaw (Guj) 361

The Gujarat High Court has affirmed that a 'permanent part-time' employee is entitled to grant of pension in terms of Dena Bank (Employees') Pension Regulations, 1995.

The Bench comprising Justice AJ Desai and Justice Mauna Bhatt thus upheld the single bench order directing grant of pension to a part-time cleaner, who had voluntarily retired from service.

S.306 IPC | Words Uttered In Fit Of Anger Sans Intention Not Instigation/ Abetment Of Suicide: Gujarat High Court

Case Title: Ramesh Babubhai Patel Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 362

The Gujarat High Court has clarified in respect of Section 306 of IPC that a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot amount to 'instigation.'

Therefore, if in the instant case, the Accused/Applicant had uttered 'you may do whatever you like and if you want to die, you may die', then it would not constitute instigation as u/s 306.

These observations were made in connection with a Section 482 application challenging the FIR against the Accused for offences u/s 306 and 114 of IPC.