Gujarat High Court Monthly Digest: May 2022 [Citations 144-192]

Swaminathan Kunchu Acharya vs State Of Gujarat 2022 LiveLaw (Guj) 144

Messrs Aztec Fluids And Machinery Pvt. Ltd. Versus UOI 2022 LiveLaw (Guj) 145

Azaz S/O Ahmed Ibrahim Ishabhai vs Commissioner Of Police 2022 LiveLaw (Guj) 146

State Of Gujarat v. Arjanbhai Titabhai Baraiya 2022 LiveLaw (Guj) 147

Oriental Insurance Co. Ltd. Versus Chief Commissioner Of Income Tax (TDS) 2022 LiveLaw (Guj) 148

Shiv Garment Through Sole Prop. Rameshchandra Gigaji Maurya v. Suryaben Kantilal Mehta 2022 LiveLaw (Guj) 149

Nimesh Dilipbhai Brahmbhatt vs Hitesh Jayantilal Patel 2022 LiveLaw (Guj) 150

Rameshbhai Dalsangbhai Kuniya Versus State Of Gujarat 2022 LiveLaw (Guj) 151

Munjaal Manishbhai Bhatt Versus Union Of India 2022 LiveLaw (Guj) 152

Vijay Arvind Jariwala v. Umang Jatin Gandhi 2022 LiveLaw (Guj) 153

Bajaj Finance Ltd. Through Authorised Officer, Aniket Pareshbhai Desai versus Ld. District Collector, Navsari & 1 other(s) Citation: 2022 LiveLaw (Guj) 154

Vijay Arvind Jariwala Versus Umang Jatin Gandhi Citation: 2022 LiveLaw (Guj) 155

Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 156

Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat 2022 LiveLaw (Guj) 157

Dhabriya Polywood Limited Vs Union of India 2022 LiveLaw (Guj) 158

Principal Commissioner Versus Reliance Industries 2022 LiveLaw (Guj) 159

Vasaya Yunusali Alarakhabhai Versus State Of Gujarat 2022 LiveLaw (Guj) 160

Harshad D Santoki S/O Devjibhai Versus State Of Gujarat 2022 LiveLaw (Guj) 161

Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s) 2022 LiveLaw (Guj) 162

Nathiben Lalitbhai Vegada Versus State Of Gujarat 2022 LiveLaw (Guj) 163

Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat 2022 LiveLaw (Guj) 164

Leepee Enterprise versus Mehul Industries 2022 LiveLaw (Guj) 165

Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S) 2022 LiveLaw (Guj) 166

Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala 2022 LiveLaw (Guj) 167

Essar Steel Limited & 1 other(s) v State Of Gujarat & 1 other(s) 2022 LiveLaw (Guj) 168

Jitendrabhai Arjanbhai Roy Versus The Director Of Agricultural Marketing And Rural Finance 2022 LiveLaw (Guj) 169

Axis Bank Limited vs State Of Gujarat 2022 LiveLaw (Guj) 170

Virani Enterprise vs State Of Gujarat 2022 LiveLaw (Guj) 171

M/S S K Industries Through Sajid Ibrahim Memon Versus State Of Gujarat 2022 LiveLaw (Guj) 172

Vaishali Nishit Patel vs State Of GujaratVaishali Nishit Patel vs State Of Gujarat 2022 LiveLaw (Guj) 173

State Of Gujarat vs Ajaybhai Champaklal Champaneri 2022 LiveLaw (Guj) 174

The Ol Of M/S Neelnandan Polymers Limited (In Liqn) V/S Suresh Gopichand Keswani 2022 LiveLaw (Guj) 175

Vivekkumar Kamalniranjan Kushwaha V/S State Of Gujarat 2022 LiveLaw (Guj) 176

Jaydev Mulubhai Jaju vs State Of Gujarat 2022 LiveLaw (Guj) 177

Hardasbhai Raymalbhai Gohil vs Sanjaybhai Arvindbhai Jabuani 2022 LiveLaw (Guj) 178

Shaileshgiri Mohangiri Meghnathi V/S State Of Gujarat 2022 LiveLaw (Guj) 179

Madrasa-E-Anware Rabbani Waqf Committee V/S Surat Municipal Corporation 2022 LiveLaw (Guj) 180

Rajendrakumar Manilal Jaiswal V/S State Of Gujarat & 3 Other(S) 2022 LiveLaw (Guj) 181

National Insurance Co Ltd V/S Rajeen Rafiqahmed Vohra & 4 Other(S) 2022 LiveLaw (Guj) 182

Amitkumar Babubhai Katara V/S The State Of Gujarat 2022 LiveLaw (Guj) 183

Sumesh Engineers Private Limited V/S Madhya Gujarat Vij Company Limited 2022 LiveLaw (Guj) 184

Yamuna cables accessories pvt. Ltd. V/s desai enterprise 2022 LiveLaw (Guj) 185

State Of Gujarat V Saurashtra Majur Mahajan Sangh 2022 LiveLaw (Guj) 186

Subhashchandra Sanatan Mallik Through Babita Subhashchandra Mallik V/S State Of Gujarat 2022 LiveLaw (Guj) 187

Darshan Bipinbhai Trivedi Versus State Of Gujarat 2022 LiveLaw (Guj) 188

Mehulkumar Ramanlal Katpara Versus State Of Gujarat 2022 LiveLaw (Guj) 189

Symphony Limited Versus Raj Cooling System Private Limited 2022 LiveLaw (Guj) 190

Ranjeetsinh Gambhirsinh Jadeja V/S Agriculture Produce Market Committee 2022 LiveLaw (Guj) 191

Minor Mohit Shankarbhaai Vaghela Through Tejal Shankarbhai Vaghela V/S State Of Gujarat 2022 LiveLaw (Guj) 192

Orders/Judgments of the Month

'Child's Welfare Paramount': Gujarat High Court Grants Custody Of 5-Yr Old Orphan To Maternal Aunt Over Paternal Grandparents

Case Title: Swaminathan Kunchu Acharya vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 144

The High Court granted custody of a 5 years old child, whose parents had passed away during Covid-19 pandemic, to his maternal aunt, over the claim made by his paternal grandparents.

The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt observed,

"The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statues govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."

Reassessment Should Only Be Done By Officer Or His Successor And Not By Any Officer Of The Same Rank : Gujarat High Court

Case Title: Messrs Aztec Fluids And Machinery Pvt. Ltd. Versus UOI

Citation: 2022 LiveLaw (Guj) 145

The High Court bench of Justice Sonia Gokani and Justice Rajendra M. Saraen, while invalidating the reassessment initiated by the DRI, held that the officer who did the assessment could only undertake reassessment.

The petitioner/assessee is a private limited company and is in the business of trading and manufacturing goods like inkjet printers, laser printers, and parts as well as accessories for printers. The petitioner has been importing goods like Continuous Inkjet Printers (CIJ Printers), Laser Marking Machines, parts and accessories for CIJ Printers, and other such goods from foreign countries. They are being imported from China during the period from 2014 to 2021.

Mere Registration Of FIRs By Itself Can't Have Nexus With Breach Of "Public Order": Gujarat High Court Quashes Preventive Detention

Case Title: Azaz S/O Ahmed Ibrahim Ishabhai vs Commissioner Of Police

Citation: 2022 LiveLaw (Guj) 146

Drawing a distinction between the term 'public order' and 'law and order'', the High Court has held that mere registration of FIR/s against an accused person does not mean he is a threat to the society or disturbs all social apparatus.

A Bench comprising Justice SH Vora and Justice Sandeep Bhatt observed,

"Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order...no other relevant and cogent material exists for invoking power under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985."

High Court Directs State To Positively Consider Service Regularization Of Asst Engineer Appointed In Aftermath Of '2001 Gujarat Earthquake'

Case Title: STATE OF GUJARAT Versus ARJANBHAI TITABHAI BARAIYA

Citation: 2022 LiveLaw (Guj) 147

Affirming the view that regularly selected employees cannot be continued for long on contractual, adhoc or temporary basis and that they ought to be regularised, the High Court came to the rescue of an Assistant Engineer who was appointed in the aftermath of 2001 Gujarat Earthquake.

A Bench comprising Justice RM Chhaya and Justice Hemant Prachchhak upheld the order of a single judge directing the Revenue Department and Urban Development & Urban Housing Department of the State Government to "positively consider" the request for regularisation.

Income Tax Not Applicable On Interest Awarded By The Motor Accident Claim Tribunal: Gujarat High Court

Case Title: Oriental Insurance Co. Ltd. Versus Chief Commissioner Of Income Tax (TDS)

Citation: 2022 LiveLaw (Guj) 148

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore held that the interest awarded by the Motor Accident Claim Tribunal (MACT) under section 171 of the Motor Vehicles Act 1988 is not taxable under the Income Tax Act, 1961.

The writ applicant, Oriental Insurance Co. Ltd., is an insurance company. One Motor Accident Claim Petition was filed in the City Civil Court of Ahmedabad. The claim petition was allowed by the MACT.

Power Of Superintendence U/Art. 227 Limited, Can't Interfere Merely To Substitute View: Gujarat HC Refuses To Direct Repairs On Suit Property

Case Title: Shiv Garment Through Sole Prop. Rameshchandra Gigaji Maurya v. Suryaben Kantilal Mehta

Citation: 2022 LiveLaw (Guj) 149

Averring that the powers under Article 227 of the Constitution should be exercised sparingly, only with a view to keep the Tribunals/ subordinate Courts within the bounds of their authority, the Gujarat High Court has rejected a petition praying for a direction upon the Respondent to carry out necessary repairs in the suit property.

The petitioner had approached the High Court against the order passed by a City Civil Court, rejecting such prayer.

Bench comprising Justice Ashokkumar Joshi observed,

"High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised."

"Party Should Not Suffer Due to Inaction of the Advocate": Gujarat HC Condones Delay of 3330 Days In Filing Written Statement

Case Title: Nimesh Dilipbhai Brahmbhatt vs Hitesh Jayantilal Patel

Citation: 2022 LiveLaw (Guj) 150

"It is trite law that a party should not suffer due to the in action on the part of the advocate and that the matter should be decided on merits rather than on technical ground", the Gujarat High Court has affirmed while hearing a petition under Art 227 to open the right to file written statement which was closed on 1^st May 2012.

The Petitioner herein submitted that the Respondent party had filed a civil suit in 2010 for declaration and permanent injunction. Pursuant to the summons, the Petitioners filed their appearance through their advocate. However, subsequently, there were no instructions from the advocate representing the Petitioners for filing the written statement owing to which the Petitioner's right to file the written statement was closed on 1^st May 2012. The Respondent, thereafter, filed his affidavit in lieu of examination in chief and the Petitioners then learnt that their written statement had not been filed leading to a delay of 3,330 days.

Service Prior To Regularization To Be Counted For Seniority, Contrary Undertaking Given By Employee No Bar: Gujarat High Court

Case Title: Rameshbhai Dalsangbhai Kuniya Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 151

The High Court CAME to the aid of some Forest Guards, who were denied the benefit of past service on the basis of an undertaking given by them that they have no objection of losing seniority for enabling their transfer.

The Petitioners had challenged a resolution that provided for a policy of considering the period of five years of the incumbents who were appointed on a fixed pay for the purposes of seniority, promotion, higher pay scale and terminal benefits from their initial date of engagement and not from the date of their regularization

GST Refund To Be Granted To The Entity Who Borne The Tax Burden: Gujarat High Court Allows GST Refund To Service Recipient

Case Title: Munjaal Manishbhai Bhatt Versus Union Of India

Citation: 2022 LiveLaw (Guj) 152

The High Court bench of Justice J.B.Pardiwala and Justice Nisha M.Thakore held that, as per Section 54 of the CGST Act, a claim of refund may be made directly by the recipient if he has borne the burden of tax.

The writ applicant is a practising advocate in the High Court. The writ applicant entered into an agreement with the respondent, Navratna Organisers & Developers Pvt. Ltd., for the purchase of a plot. The agreement encompassed the construction of a bungalow on the plot of land by the respondent for the writ applicant.

Interim Relief Under Section 9 Of The A&C Act Cannot Be Granted Against A Third-Party Unless Claiming Under A Party To The Arbitration Agreement: Gujarat High Court

Case Title: Vijay Arvind Jariwala v. Umang Jatin Gandhi, R/SPECIAL CIVIL APPLICATION NO. 16131 of 2021

Citation: 2022 LiveLaw (Guj) 153

The High Court held that a third party cannot be impleaded as a party to an application for interim reliefs under Section 9 of the A&C Actunless it is a party who is claiming under a party to the arbitration agreement.

The Division Bench of Justice N.V. Anjaria and Justice Samir J.Dave has held that the remedy under the Arbitration Act is between the parties to the arbitration agreement, therefore, the third party has no concern with the proceedings of Section 9 nor the said provision recognizes the inclusion of the third party, who may be independently claiming the rights against the parties to the arbitration and vice versa.

Updates From High Court/Gujarat Courts

Does Sending Reminders For Payment Of School Fees Amount To 'Cruelty To Children' U/S 75 Juvenile Justice Act? Gujarat High Court To Examine

The Gujarat High Court is set to examine whether the action of Schools sending reminders to parents for non-payment of fees amounts to an offence under Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2015.

The provision provides punishment for cruelty to child, which may lead to physical or "mental suffering".

Justice Bhargav Karia has issued notice on a Special Civil Application filed by the Federation of Self-Financed Schools against an order issued by the Collector and District Magistrate of Surat, stating that harassment of school students for non payment of fees is a gross violation of Section 75 of the JJ Act.

Freedom Fighter's Descendant Alleges Harassment For Exposing Corruption In Gujarat Transport Dpt, Seeks High Court's Permission For "Active Euthanasia"

In a writ petition filed before the High Court under Article 226 of the Constitution, a man claiming to be a descendant of freedom fighter Namdev Nathu Mahajan has sought permission to commit Iccha Mrytyu i.e., active euthanasia.

The Petitioner, 56 years of age, says he was working as a driver in the Gujarat State Road Transport Corporation when he received information and documents regarding some corruption which was going on in the department. This corruption was allegedly being carried on with the support of high level officers of the department.

Gujarat MLA Jignesh Mevani Gets 3-Month Jail Term By Local Court For Holding Protest March In 2017 Disobeying Magistrate's Order

A Court in the Mehsana District of Gujarat sentenced Gujarat Independent MLA Jignesh Mevani and 9 others to 3 months of imprisonment while holding them guilty of committing offence punishable under Section 143 IPC.

Additional Chief Judicial Magistrate J.A. Parmar noted that all 10 were members of Mevani's Rashtriya Dalit Adhikar Manch and when they were asked to not go ahead with the processions, they disobeyed the orders of the executive magistrate, and therefore, the said assembly became an unlawful assembly.

Gujarat High Court Issues Notice To Centre On PIL Seeking Appointment Of Presiding Officer In DRT-I, Ahmedabad

A Public Interest Litigation (PIL) plea has been moved in the Gujarat High Court seeking a direction for filling up posts of Presiding Officer in the Debt Recovery Tribunal-I, Ahmedabad in terms of Section 4 of the Recovery of Debt and Bankruptcy Act, 1993.

Hearing the matter on Thursday the bench of Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri issued the notice to the Centre and directed it to file a reply by June 10, 2022.

District Magistrate Not Vested With Adjudicatory Powers U/S 14 SARFAESI Act, Can Only Render Ministerial Assistance To Creditors: Gujarat High Court

Case Title: bajaj finance ltd. Through authorised officer, aniket pareshbhai desai versus ld. District collector, navsari & 1 other(s)

Citation: 2022 LiveLaw (Guj) 154

Explaining that under Section 26E of the SARFAESI Act, the secured creditor has the first claim over the sale proceeds of secured assets and that the District Magistrate has to provide assistance under Section 14 to the secured creditor to take possession of the asset, the Gujarat High Court has quashed a communication which prohibited the Petitioner-bank from proceedings against the borrower-company.

Can Third Parties To An Arbitration Agreement Be Impleaded As Parties In Proceedings U/S 9 Arbitration Act?: Gujarat High Court Answers

Case Title: Vijay Arvind Jariwala Versus Umang Jatin Gandhi

Citation: 2022 LiveLaw (Guj) 155

"In the proceedings of section 11, a person who is not a party to the agreement, has no association in eye of law. On the same footing, a third party cannot be a party in the proceedings under section 9 of the Act for interim measures wherein by very nature of the proceedings, third party cannot be said to have a legal participatory right", the Gujarat High Court has recently observed.

The Bench comprising Justice NV Anjaria and Justice Samir Davehas been hearing an application under Section 9 of the Arbitration and Conciliation Act, 1996. The application was filed by one partner of a partnership firm (Blue Feathers Infracon) against the other wherein the Petitioner filed the interim application to implead a retired partner of the firm and his wife as respondent parties.

Sample Analysis Report Of Central Insecticides Lab U/S 24(4) Of Insecticides Act Is 'Conclusive Evidence': Gujarat High Court

Case Title: Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 156

The Gujarat High Court has held that the sample analysis report received from the Central Insecticides Laboratory under Section 24(4) of the Insecticides Act, 1968 is a 'conclusive proof' of facts involved.

Section 24(4) makes provision for a sampel to be sent for test or analysis to the Central Insecticides Laboratory, which shall file its report within 30 days, in writing, signed by or under the authority of the Director of the Laboratory and the report shall be conclusive evidence of the facts stated therein.

Gujarat High Court Directs Wife To Pay ₹10K To Husband As She Deserted Him Over Difference In Their Sub-Castes

Case title - Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 157

The High Court directed a woman who deserted her husband under the influence of her family on the ground that he belongs to a different sub casere, to pay Rs. 10,000/- to her husband.

"We find it extremely unfortunate that the educated couple needs to end the relationship in such a fashion just because there is a strong resistance on the part of the parents and taken in exert this kind of influence," the Bench of Justice Sonia Gokani and Justice Mauna Bhatt remarked.

Bonafide Mistake In Selection Of Wrong ODC Vehicle Type While Generating E-Way Bill: Gujarat High Court Quashes Detention Order

Case Title: Dhabriya Polywood Limited Vs Union of India

Citation: 2022 LiveLaw (Guj) 158

The High Court has quashed the detention order as there was a bonafide mistake in the selection of the wrong ODC vehicle type while generating the e-way bill.

The division bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thakore observed that the goods were in transit with all the necessary documents, including the E-way bill generated from the GST portal. The goods were moved by a truck whose registration number was also correct. The only mistake in this case was the selection of the wrong ODC vehicle type while generating the e-Way Bill.

Methanol Arises As A Result Of Chemical Reaction And Not As A By- Product, No Excise Duty Payable: Gujarat High Court

Case Title: Principal Commissioner Versus Reliance Industries

Citation: 2022 LiveLaw (Guj) 159

The High Court bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thankore has held that methanol is not excisable as it is a result of a chemical reaction and not as a result of any by-product.

The respondent-assessee, Reliance Industries, is in the business of manufacturing excisable goods like Motor Spirit, High Speed Diesel, LPG etc. It is the case of the appellant that the respondent has been availing credit of duty paid on the input and capital goods and input services in terms of the provisions of the CENVAT Credit Rules, 2004. The refund claim was made in respect of the CENVAT Credit Reversed or Paid under Rule 6(3) of the CENVAT Credit Rules, 2004 for the period between April, 2015 and March, 2016 on the removal of the LPG under the Domestic Subsidy Scheme

Police Atrocities| Gujarat High Court Urges State To Install CCTV Cameras, Follow DK Basu Guidelines

Case Title: Vasaya Yunusali Alarakhabhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 160

The High Court recently recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region.

A Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case.

Can't Deny Academic Grade Pay To An Asst. Professor Citing 'Adverse Remarks' For A Brief Period: Gujarat High Court

Case Title: Harshad D Santoki S/O Devjibhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 161

In a major relief to an Assistant Professor at the Industrial Engineering Department of LE College, Morbi, the Gujarat High Court has directed the respondent authorities to grant him an Academic Grade Pay (AGP) of Rs. 8,000 from 2010 onwards and consequential benefits of INR 9,000 from 2013.

Justice Vaishnav noted that except for certain adverse remarks from 2009-10, there were no adverse remarks against the Petitioner in the 19 years of service that he had rendered. The issue of unauthorised pay was an aspect of penalty even as the other remarks regarding his ability to decisions or lack of initiative were not so grave so as to deprive him of the AGP. The High Court remarked:

"For these two purported adverse instances the financial loss that has occurred to the petitioner is denial of AGPs consequentially based on the communication of 2019."

'No Misuse Of Liberty Or Violation Of Bail Conditions': Gujarat High Court Explains Law On Cancellation Of Anticipatory Bail

Case Title: Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s)

Citation: 2022 LiveLaw (Guj) 162

The Gujarat High Court Bench comprising Justice Ashutosh Shastri recently dismissed an application seeking cancellation of bail while noting that there was no violation of any bail conditions or misuse of liberty could be made out against the accused persons.

There were 20 FIRs registered against the Accused persons for offences punishable under Sections 409, 420, 467, 468, 471, 114, 34 and 120(B) of the IPC. The main accused person in these FIRs being the Vice-Chairman of the Shree Vikas Cooperative Bank Limited ('Applicant Bank') was accused of having sanctioned different loans for his relatives without proper security even as the relatives failed to repay the loan with interest in due time.

'No Positive Material': Gujarat High Court Refuses To Exercise Contempt Jurisdiction In Case Involving False Allegations Of Police Brutality

Case Title: Nathiben Lalitbhai Vegada Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 163

"It is trite law that initiation of contempt proceedings is a serious step; same cannot be exercised in a routine manner. Unless there is a definite material and clear case made out, this Court would refuse to exercise contempt jurisdiction", the Gujarat High Court has held while dismissing a false application filed under Section 10 of the Contempt of Courts Act by the applicant through her sister (minor).

The Applicant herein had approached the Court to initiate contempt proceedings against the State authorities for the wilful and deliberate disobedience of the guidelines laid down by the Supreme Court in DK Basu vs State of West Bengal for the alleged physical abuse endured by her sister and herself.

It was averred that the an Activa vehicle belonging to the employee of the Applicant's sister was detained by the traffic police. On the subsequent payment of the fine, the sister reached the police station to take possession of the vehicle along with the Applicant wherein the authorities delivered blows on them resulting in serious injuries. After being admitted to the hospital, the Applicant claimed that an FIR was lodged against them along with two other Accused persons for offences under Section 447, 379 and 114 of the IPC. The Applicant insisted that no theft or trespass was committed by her.

Gujarat HC Grants Custody Of 4-Yr-Old To Mother In Writ Jurisdiction, Suspends Father's Visitation Rights For 6 Months Citing Unruly Behaviour

Case Title: Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 164

Considering the well settled principle of paramount welfare of child, the Gujarat High Court recently exercised its extraordinary powers under Section 226 of the Constitution and granted custody of the corpus, a 4 old year boy, to his mother (Petitioner herein).

The child was said to be taken away from the mother by the child's father, following a matrimonial dispute. After the judgment was pronounced in Petitioner's favour, the Bench comprising Justices Sonia Gokani and Mauna M Bhatt noted the father's attempt to create an unruly atmosphere in the Court. Thus, it suspended his visitation rights for a period of six months.

"We allow this petition giving the custody of child to the mother. Let the same be handed-over peacefully to the mother...the father would have visitation right...After the judgement was pronounced, respondent-father of the child tried to create unruly atmosphere in the Court premise leading to unmanageable situation for Campus Administration. His intimidating behaviour make us suspend the visitation rights for six months from today," the order stated.

Party Failing To Raise The Issue Of Jurisdiction At Section 11 Notice Stage Or During The Arbitral Proceedings, Ground Not Available Under Section 34: Gujarat High Court

Case Title: Leepee Enterprise versus Mehul Industries

Citation: 2022 LiveLaw (Guj) 165

The High Court has ruled that the issue of jurisdiction of the Arbitrator ought to be raised at the first available opportunity, i.e., when the notice under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) is served for appointment of Arbitrator.

The Single Bench of Justice A.G. Uraizee rejected the contention that the issue of jurisdiction being a legal issue can be raised at any stage. The Court held that since the party had not raised the issue of lack of jurisdiction of the Arbitrator by responding to the notice issued under Section 11 of the A&C Act nor had it participated in the arbitral proceedings to raise the said issue, the arbitral award could not be set aside on the ground of lack of jurisdiction of the Arbitrator.

No Untoward Incident Has Occured: Gujarat High Court Dismisses Plea For Cancellation Of Bail Of Accused Under SC/ST Act

Case Title: Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S)

Citation: 2022 LiveLaw (Guj) 166

Observing that no untoward incident has taken place since the persons accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were released on bail, the Gujarat High Court has refused to entertain an application preferred by the complainant for cancellation of bail.

Bench comprising Justice Ashutosh Shastri observed,

"Trial is already set on motion and the case has already been fixed on 20.6.2022, and further, there is no untoward incident has taken place after June 2017 nor any case is made out of breach of any of the conditions of grant of bail, hence this Court is not inclined to exercise discretion to cancel the bail which has been granted."

Gujarat High Court Sets Aside Injunction Passed By State Waqf Tribunal On Construction Of Railway Tracks Near Dargah

Case Title: Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala

Citation: 2022 LiveLaw (Guj) 167

The High Court held that merely because a Dargah is situated in a railway land and not disturbed or removed because of its devotees and followers, does not mean that the surrounding land of the Dargah becomes the Dargah's property.

Observing thus, the Bench comprising Justice Umesh Trivedi set aside an order of the State Waqf Tribunal which granted injunction in favour of the Trustee of the concerned Dargah, halting the construction of railway line near the Dargah.

All Related Proceedings Stand Discharged, Settled, Abated, & Extinguished On Approval Of Resolution Plan: Gujarat High Court

Case Title: Essar Steel Limited & 1 other(s) v State Of Gujarat & 1 other(s)

Citation: 2022 LiveLaw (Guj) 168

The High Court reiterates the legal position and has allowed the civil application filed by Essar Steel Limited seeking declarations that the claims raised by the original espondent stand abated and extinguished in view of Section 31(1) of the Insolvency and Bankruptcy Code read with the Resolution Plan and the judgement passed by the Supreme Court in Essar Steel India Limited vs Satish Kumar Gupta and Ors.

Inclusion/ Exclusion Of Name In Voters' List Not An Extraordinary Circumstance Warranting Interference U/Art 226 Constitution: Gujarat HC Reiterates

Case Title: Jitendrabhai Arjanbhai Roy Versus The Director Of Agricultural Marketing And Rural Finance

Citation: 2022 LiveLaw (Guj) 169

The Gujarat High court has reiterated that removal of a person's name from the voters' list is not an "extraordinary circumstance" warranting invocation of High Court's extraordinary jurisdiction under Article 226 of the Constitution. It held that a person aggrieved must avail statutory remedy by filing election petition under Rule 28.

A Bench comprising Justice Biren Vaishnav and Justice Sandeep Bhatt affirmed the following observations made by a single judge,

"Once the process of election has been set in motion this Court under Article 226 of the Constitution of India would not interfere in the election process. Accordingly this Court is not inclined to interfere with the impugned order passed by the respondent No.3 and relegate the writ applicant to avail statutory remedy by filing election petition under Rule 28.

The rejection of the writ-applicant's name from the voters' list results in exclusion of name of the writ-applicant from the voters' list...the writ-applicant can avail the benefit of provisions of Rule 28 of the Rules by filing the election petition. The authority under Rule 28 has wide power to cancel and, confirm and amend the election and also to direct to hold fresh election in case the election is set aside and the remedy under Rule 28 is an efficacious remedy."

SARFAESI Act | State Can't Claim Preference Over Subject Property For Recovery Of Dues Towards Tax In Auction Proceedings Of A Secured Asset: Gujarat HC

Case Title: Axis Bank Limited vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 170

What came to be purchased by the writ-applicant in the auction proceedings conducted by the Bank of Baroda was a secured asset under the provisions of the SARFAESI Act. In such circumstances, the State cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank in exercise of its powers under the SARFAESI Act, put the subject property to auction", the Gujarat High Court has observed.

Even God Gave Benefit Of 'Audi Alteram Partem' To Adam & Eve, Principles Of Natural Justice Sine Qua Non In Civilised Society: Gujarat High Court

Case Title: Virani Enterprise vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 171

Emphasizing on the importance of principles of natural justice in a "civilized society", the Gujarat High Court observed,

"the benefit of audi alteram partem principle was even extended to Adam and Eve, even by God before they were punished for disobeying His command. This signifies that even if the authority already knows everything and the person has nothing more to tell, even then this rule of natural justice is attracted, unless application of this rule would be a mere empty formality."

Customs Act | Gujarat High Court Endorses Expeditious Disposal Of Case Property, Orders Release Of Base Oil Worth ₹67 Lakhs Subject To Surety

Case Title: M/S S K Industries Through Sajid Ibrahim Memon Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 172

The High Court has endorsed the "expeditious and judicious" disposal of case property so as to ensure that the owner such seized property does not suffer unnecessary losses and the authorities are also saved from maintaining custody of such property.

Justice Ilesh Vora, while dealing with a case involving 1,03,120 kilograms muddamla seized base oil worth Rs. 67,02,800 observed,

"the expeditious and judicious disposal of the case property would ensure that the owner of the article would not suffer because of its remaining unused. Court or police would not require to keep the article in safe custody, as it would save the cost of storage etc."

'Right Of Every Party': Gujarat High Court Permits Indian-American Mother To Withdraw Habeas Corpus Plea Seeking Daughters' Custody

Case Title: Vaishali Nishit Patel vs State Of GujaratVaishali Nishit Patel vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 173

The High Court permitted an American Citizen of Indian origin, who had moved a habeas corpus petition seeking custody of her daughters from her husband, to withdraw the plea while observing that every party has a "right" to withdraw the proceedings.

It however hoped, that since the matter involved two minor children, the parties will act in their best interest.

"While permitting withdrawal, which is the right of every party, this Court is of the opinion that to both the parties need to act in the best interest of their children and it is therefore desirable for them to attempt an amicable settlement," Justice Sonia Gokani and Justice Mauna Bhatt observed.

Statement Of Co-Accused Can't Be Sole Basis To Convict Any Person: Gujarat High Court

Case Title: State Of Gujarat vs Ajaybhai Champaklal Champaneri

Citation: 2022 LiveLaw (Guj) 174

The High Court has reiterated that Statement of the co-accused or admission of the co-accused cannot be proved in evidence against the maker of it and it cannot be sole base to convict any person.

It also observed that the provisions of Sections 24-26 of the Evidence Act 'clearly' restrict the acceptance of such confession that are made or caused by inducement, threat, promise while referring to the charge against Accused persons.

Gujarat High Court Exonerates Company Directors For Belated Filing Of Statement Of Affairs U/S 454 Of Companies Act 1956

Case Title: The Ol Of M/S Neelnandan Polymers Limited (In Liqn) V/S Suresh Gopichand Keswani

Citation: 2022 LiveLaw (Guj) 175

The High Court recently exonerated the Directors of a Company, undergoing liquidation, over their failure to submit the Statement of Affairs of the Company with the Official Liquidator within stipulated period of 21 days from the date of winding up, under Section 454 of the Companies Act, 1956.

Whereas the alleged delay in filing the statement was of 3 years, Justice Bhargav Karia stated that However taking into consideration the prevailing condition of Covid -19 Pandemic in the year 2020 and 2021, it can be said that the accused persons have committed default for not filing Statement of Affairs for more than one year.

Gujarat High Court Grants Bail To Man Accused Of Abetting Suicide Of Mentally Depressed Wife By Demanding Dowry

Case Title: Vivekkumar Kamalniranjan Kushwaha V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 176

The Gujarat High Court has recently granted bail to a man accused under Sections 306, 498A and 506(2) of the Indian Penal Code and under Sections 3 and 4 of the Prohibition of Dowry Act for abetting the suicide of his wife by demanding dowry.

A Bench comprising Justice Gita Gopi observed that given the fragile mental state of the deceased person and the fact that the trial would take a long time to conclude, it was a fit case for exercising discretion in favour of the Applicant.

Gujarat High Court Permits Provisional Appointment Of Person Claiming Scheduled Tribe Quota Pending Scrutiny Of Caste Certificate

Case Title: Jaydev Mulubhai Jaju vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 177

The High Court has permitted a person claiming to be from the Scheduled Tribe community, to be provisionally appointed to the post of Sales Tax Inspector Class III, pending scrutiny of the caste certificate produced by him.

Justice Biren Vaishnav directed that such an appointment will be subjected to the result of the Scrutiny Committee. If the certificate produced by the Petitioner is proved to be disingenuous, the Petitioner would not be entitled to the benefit of being in provisional service. Per contra, if the certificate of the Petitioner is found to be genuine, it will be open for the Petitioner to claim his actual appointment along with continuity of service and other benefits.

Mere Delay In Filing FIR Not Fatal In Motor Accident Claims If Adequate Explanation Is Offered: Gujarat High Court

Case Title: Hardasbhai Raymalbhai Gohil vs Sanjaybhai Arvindbhai Jabuani

Citation: 2022 LiveLaw (Guj) 178

The High Court directed the Motor Accident Claims Tribunal to consider the claim petition filed by a motor accident victim, even though there was a delay of about 1 month in reporting the matter to the Police.

The direction was passed in a First Appeal filed under Section 173 of the Motor Vehicles Act 1988 challenging dismissal of the claim petition. Attention was drawn to the fact that the victim herein was earning INR 1,50,000 from his agricultural work and therefore the claimants were entitled to get compensation worth INR 11,00,000.

'Pious Stream Of Justice' Must Not Be Polluted: Gujarat High Court Refuses Bail To Lawyer Accused Of Cheating & Criminal Breach Of Trust

Case Title: Shaileshgiri Mohangiri Meghnathi V/S State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 179

While opining that it is a matter of shame for a lawyer to be involved in serious offences of cheating, criminal breach of trust and criminal intimidation, the Gujarat High Court has refused bail to the Applicant who had allegedly eloped for 3 years with a huge amount of money during the execution of a sale deed.

The Bench comprising Justice Niral R Mehta observed,

"applicant being a lawyer by profession, is oftenly involved in the offence serious in nature which itself is a matter of shame. The profession of a lawyer is a noble profession, as it has direct nexus with pious stream of justice which at any cost shall not be allowed to be polluted. It is highly unexpected from a lawyer to have indulged in such an offence not once, but several times in past. Though some offences are settled, but the fact remains that the offences took place at the instance of the applicant. Thus, the conduct of the applicant seems to be not befitting to the standard of the profession."

Gujarat High Court Refuses To Intervene In Order Declaring Construction Of Madrassa On State Property Illegal

Case Title: Madrasa-E-Anware Rabbani Waqf Committee V/S Surat Municipal Corporation

Case Citation: 2022 LiveLaw (Guj) 180

The High Court refused to interfere with an order passed by the Executive Engineer of the Surat Municipal Corporation, directing removal of an alleged "Madrassa" said to be constructed on a government land, on the ground that the construction was without prior permission of the competent authority.

"In the opinion of the Court, in absence of any evidence on record regarding actual running of educational institution and there is nothing on record to indicate any permission to running educational institution or building permission to put up construction of educational institution and the factual assertion not being controverted that the premises were being used for commercial purpose, the Court is not inclined to interfere with the ongoing process, which according to the Court is in accordance with the provisions of GDCR," Justice AY Kogje said.

Investigating Officer Can't Change Stand Or Rely On Material Not Forming Part Of Chargesheet To Arraign The Accused: Gujarat High Court

Case Title: Rajendrakumar Manilal Jaiswal V/S State Of Gujarat & 3 Other(S)

Case Citation: 2022 LiveLaw (Guj) 181

While quashing the FIR registered against the Applicant for offences under Sections-66(1)b, 65AE, 116(2), 81, 98 and 99 of the Gujarat Prohibition Act, the High Court has held that it is not open for the Investigating Officer to rely upon other material which was not a part of the chargesheet to allege that the Applicant was involved in the crime in in question.

The Applicant had challenged the FIR since initially he was not named in the FIR but after the investigation his name was included in the charge sheet basis the statements of the co-accused. It was also mentioned in the chargesheet that the Applicant was the principal purchaser of prohibited goods despite there being no material to support the allegations. There was also no evidence that the Applicant had piloted the truck with prohibited goods.

Appeal Filed By Insurance Company 'Unnecessary' Considering 'Smallness Of Amount': Gujarat High Court Upholds Compensation Award Of ₹65,200

Case Title: National Insurance Co Ltd V/S Rajeen Rafiqahmed Vohra & 4 Other(S)

Case Citation: 2022 LiveLaw (Guj) 182

Stating that the Insurance Company had unnecessarily filed an appeal for challenging a small compensation amount in a motor vehicles accident claim, Justice Sandeep Bhatt has affirmed the award of INR 65, 200 passed by the Motor Accident Claims Tribunal and dismissed the appeal of the Insurance Company.

The brief facts of the case were that the Claimant (Respondent No. 1) was riding in a rash and negligent manner on a motorcycle with the Opponent No. 2 as a pillion rider when the Opponent No. 4 driving a tempo hit the motorcycle because of excessive speed. This caused serious injuries and fracture to the Claimant. The claim petition was filed to gain compensation worth INR 3 lakhs. However, noting the involvement and liabilities of both parties and the disability claims, the Tribunal declared a compensation of INR 65,200 with 7.5% interest for the Claimant.

Gujarat High Court Denies Bail To Congress Leader Amit Katara Accused Of Conspiring To Murder BJP Councillor Amid Political Rivalry

Case Title: Amitkumar Babubhai Katara V/S The State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 183

Opining that there is sufficient evidence to form a prima facie view that the Congress Leader Amit Katara hatched a criminal conspiracy to murder BJP councillor Hiren Patel amid political rivalry, the Gujarat High Court has rejected his bail plea for alleged offences under Sections 302, 303 read with Sections 120(b) and 201 of IPC.

The Bench comprising Justice Ilesh Vora observed,

"The Court should not go into merits of the case by appreciation of the evidence. Thus, considering the facts and circumstances of the present case, it appears that the applicant was dominating over the municipality affairs as his wife was President and the whole body was representing one party. In this context, when deceased had managed to win over the councilors of the ruling party, naturally, the issue of ruling of municipality would arise. At this stage, considering the material collected during the course of investigation, it cannot be said that there is no evidence connecting the applicant herein in the alleged offence. It is alleged that, the applicant conspired to kill the deceased for which, he agreed to finance also."

Courts Can't Interfere In Contractual Matters Unless A Clear-Cut Case Of Arbitrariness Is Made Out: Gujarat High Court

Case Title: Sumesh Engineers Private Limited V/S Madhya Gujarat Vij Company Limited

Case Citation: 2022 LiveLaw (Guj) 184

The Gujarat High Court has recently observed that normally, Courts would be loath to interfere in contractual matters unless a clear-cut case of arbitrariness or malafides or bias or irrationality is made out.

A bench of Chief Justice Aravind Kumar and Justice Ashutosh Shastri observed that needless interference in commercial matters can cause havoc and hence, the Courts must realize their limitations in such matters.

"But, at the same time, it is also the proposition of law that Constitutional Court being the guardian of the fundamental rights, is duty bound to interfere when there is arbitrariness, irrationality, malafides and bias and as such, a duty is cast upon the Court in such circumstances that whenever any specific arbitrariness or irrationality is visible in public interest, Court can exercise powers of judicial review," it added.

Pre-Deposit Of 75% Of Awarded Amount As Per S.19 Of MSMED Act Can Be Made In Installments: Gujarat High Court

Case Title: yamuna cables accessories pvt. Ltd. V/s desai enterprise

Case Citation: 2022 LiveLaw (Guj) 185

The High Court permitted a party in appeal under the Micro, Small and Medium Enterprises Development Act, 2006 to make a pre-deposit to Court in terms of Section 19 of the Act, i.e., 75% of the amount awarded, in installments.

The Petitioner herein was aggrieved by an order of Additional District Judge, whereby its application for extension of time to deposit the 75% of the award amount was rejected.

Gujarat HC Affirms Regularisation Of Sweeper Working Around 8 Hours A Day For Over 30 Years

Case Title : State Of Gujarat V Saurashtra Majur Mahajan Sangh

Case Citation: 2022 LiveLaw (Guj) 186

Justice Biren Vaishnav affirmed the order of the Industrial Tribunal which directed the Petitioner-State authorities to regularise the position of a sweeper who had been working for over four hours everyday for the past thirty years. The Tribunal had directed that the State also remit all the arrears from the date of reinstatement given the length of the worker's tenure.

Offences Under Drugs & Cosmetics Act & Medical Practitioner Act Can't By Itself Bring Detenu Under Gujarat Prevention Of Anti-Social Activities Act: High Court

Case Title: Subhashchandra Sanatan Mallik Through Babita Subhashchandra Mallik V/S State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 187

The Gujarat High Court while allowing the petition against the order of detention of the Petitioner has held that offences under Section 27 of the Drugs and Cosmetics Act and Sections 30 and 35 of the Gujarat Medical Practitioner Act by itself cannot bring the detenu within the fold of the Gujarat Prevention of Anti-Social Activities Act, 1985.

Not Necessary To Gain Journalism Experience From Govt Company For Appointment As Class II Assistant Director Of Info At State's I&B Dept: Gujarat HC

Case Title: Darshan Bipinbhai Trivedi Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 188

The Gujarat High Court has made it clear that the Assistant Director of Information (Journalism) Class II Recruitment Rules, 2015 nowhere stipulate that Journalism experience necessarily has to be from a government organization for appointment to the post of Assistant Director of Information (Journalism) Class II.

"Nowhere does Recruitment Rule stipulate that it has to be in only a government or local body or a government undertaking board or the Corporation or a Company. This would amount to restrictive reading of the Rule and, therefore, it cannot be said that the respondent No.3 does not possess the requisite experience," Justice Biren Vaishnav observed.

Gujarat High Court Orders Regularization Of Multi-Purpose Health Workers Engaged In Contractual Service

Case Title: Mehulkumar Ramanlal Katpara Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 189

Ensuring that no discrimination is borne by Multi-Purpose Health Workers (Male), the High Court held that they shall be entitled to regular pay scale from their original date of appointment and consequential benefits which were paid to similarly situated employees way back in the year 2011 and 2016.

Justice Biren Vaishnav referred to previous orders of the High Court by wherein Multi-Purpose Health Workers were regularised while observing:

"Multi Purpose Health Worker (Male) who have worked continuously for so many years cannot be discriminated by taking one excuse or the other. There is no rationale in discriminating the present petitioners by treating them as employees on contractual basis when initial contract for which they were appointed is over after 11 months and thereafter, without any break, they are continued for all these years. This is particularly so, when clear cut finding has been recorded by co-ordinate Bench of this Court in Special Civil Application No.6289 of 2011 and respondents were party in these proceedings."

Symphony Coolers: Gujarat High Court Issues Consent Decree Pursuant To Settlement Of Dispute Over Infringement Of Air Cooler Design

Case Title: Symphony Limited Versus Raj Cooling System Private Limited

Case Citation: 2022 LiveLaw (Guj) 190

The High Court passed a consent decree in terms of a settlement arrived between renowned Symphony coolers and Raj Cooling System Pvt Ltd in connection with a suit for permanent injunction instituted under the Designs Act, 2000.

The suit was filed by Symphony Ltd. alleging infringement of the Designs Act by the Respondent company, alleging that the latter has been selling their product of air cooler having model name ALLWYN AC201 and ALLWYN AC203, whose is similar to Symphony's design vide registration no. 288184.

Limitation Act Inapplicable To Contempt Proceedings: Gujarat High Court Refuses To Condone 389 Days Delay

Case Title: Ranjeetsinh Gambhirsinh Jadeja V/S Agriculture Produce Market Committee

Case Citation: 2022 LiveLaw (Guj) 191

The High Court held that the provisions of the Limitation Act, 1963 do not apply to contempt proceedings. In this light, it refused to entertain a contempt petition filed with a delay of over 1 year.

A Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri noted that as per Section 20 of the Contempt of Courts Act, proceedings for contempt cannot be initiated by a Court, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed

Gujarat High Court Grants Bail To 16-Yr-Old Accused Of Committing Unnatural Sex With 13-Yr-Old

Case Title: Minor Mohit Shankarbhaai Vaghela Through Tejal Shankarbhai Vaghela V/S State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 192

The Gujarat High Court granted bail to a 16 years old boy, accused of forcibly committing unnatural sex (sodomy) with a minor boy, aged about 13 years.

Keeping in view Section 12 of the Juvenile Justice Act, a Bench of Justice Samir Dave granted bail to the accused while restraining him from entering the society where the alleged victim resides. In doing so, the Bench allowed the criminal revision application filed under Section 102 of the JJ Act to quash the order passed by the Sessions Court and the JJ Board, refusing bail.