Gujarat High Court Weekly Round Up: June 13 - June 19, 2022

Iqbal Hasanali Syed Versus State Of Gujarat 2022 LiveLaw (Guj) 208

Soni Anilkumar Prahladbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 209

Sabirbhai Gafarbhai Multani Versus State Of Gujarat 2022 LiveLaw (Guj) 210

Hamidabanu Anawarbhai Multani & 2 Other(S) V/S Haiderbhai Bhikhabhai Bhetariya & 5 Other(S) 2022 LiveLaw (Guj) 211

M/s MBR Flexibles Ltd. Versus Deputy Commissioner Of State Tax 2022 LiveLaw (Guj) 212

Lalitkumar Bhimsen Hemrajani V/S District Collector 2022 LiveLaw (Guj) 213

Cazy Concepts and Mazes pvt. Ltd. & 1 other(s) v/s n. Venkta yayadri rao & 1 other(s) 2022 LiveLaw (Guj) 214

Ayyubkhan Kalekhan Pathan V/S State Of Gujarat 2022 LiveLaw (Guj) 215

Madhukantaben D/O Somabhai Shankarbhai Patel V/S State Of Gujarat 2022 LiveLaw (Guj) 216

K News Channel Versus State Of Gujarat 2022 LiveLaw (Guj) 217

Hemant Rameshchandra Rupala V/S Union Of India Thru The Secretary 2022 LiveLaw (Guj) 218

Kanhai Foods Ltd versus A and HP Bakes 2022 LiveLaw (Guj) 219

Pahal Engineers v. The Gujarat Water Supply and Sewerage Board 2022 LiveLaw (Guj) 220

Devshibhai Raydebhai Gadher Versus State Of Gujarat 2022 LiveLaw (Guj) 221

Amrishbhai Natubhai Patel V/S State Of Gujarat & 2 Other(S) 2022 LiveLaw (Guj) 222

Mansinh Amarsinh Devdhara V/S State Of Gujarat 2022 LiveLaw (Guj) 223

Chhayaben @ Hetalben Atulbhai Asodariya Versus The Registrar Of Birth And Death/Chief Officer 2022 LiveLaw (Guj) 224

Aasifbhai Hajiabdul Bhaya V/S State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 225

Bhalodiya Ravikumar Jaynatilal Versus State Of Gujarat 2022 LiveLaw (Guj) 226

ORDERS/JUDGMENTS OF THE WEEK

'Soft Target': Gujarat High Court Grants Anticipatory Bail To Ex-ASG IH Syed In Extortion Case, Says Allegations Apparently Designed To Humiliate Him

Case Title: Iqbal Hasanali Syed Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 208

The former ASG at Gujarat High Court, IH Syed was granted anticipatory bail by a bench consisting of Justice Nikhil S. Kariel of the Gujarat High Court. The court found that the accused was not obliged to make out a special case for grant of anticipatory bail and even though the Court's power of granting anticipatory bail was not ordinary, its use was not confined to exceptional cases alone.

Filing Written Request Must For The Accused To Be Treated As A Witness U/S 315 CrPC: Gujarat High Court

Case Title: Soni Anilkumar Prahladbhai V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 209

The Gujarat High Court has held that an accused person can be competent witness, provided there is a written permission or there is a written request made to the concerned court at the instance of accused under Section 315 CrPC.

It thus dismissed the petition challenging the order of the Sessions Court which rejected the Petitioner's application for being treated as a witness, in the absence of a written request.

Minor's Custody With Maternal Grandparents Not Illegal Confinement Especially When Husband Remarried During Subsistence Of First Marriage: Gujarat HC

Case Title : Sabirbhai Gafarbhai Multani Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 210

A division bench of the Gujarat High Court comprising Justices Vipul M. Pancholi and Rajendra M. Sareen has held that custody of a minor with his maternal grandparents could not be considered illegal custody or illegal confinement, given that the husband/ the father of the minor had remarried during subsistence of his marriage with his first wife, who was the mother of the said minor.

This petition was filed under Article 226 of the Constitution of India praying to direct the police authority to produce the corpus (Samir, a minor aged 9 years) and handover his custody to the petitioner (the father). The respondent in this case are maternal grandparents of the corpus.

Gujarat High Court Enhances Motor Accident Compensation By ₹4.8 Lakh, Grants Spousal & Parental Consortium

Case Title: Hamidabanu Anawarbhai Multani & 2 Other(S) V/S Haiderbhai Bhikhabhai Bhetariya & 5 Other(S)

Citation: 2022 LiveLaw (Guj) 211

Taking into account the income of the deceased victim of motor accident, the spousal consortium and the parental consortium, the Gujarat High Court has increased the motor accident compensation for the Appellants (family of the deceased) by a significant amount, i.e., by Rs. 4,84,000.

Whereas the Trial Court had ordered payment of Rs. 15,58,900/-, the Bench comprising Justice RM Chhaya and Justice Sandeep Bhatt enhanced the compensation to Rs. 20,42,856/-. It observed, "all the three appellant no.1 would be entitled to spousal consortium, and appellants no.2 and 3 would be entitled to parental consortium of Rs.40,000/-(Rs.1,20,000/-)."

Order Passed On The Same Day When Notice Was Issued Led To The Violation Of Principle Of Natural Justice: Gujarat High Court

Case Title: M/s MBR Flexibles Ltd. Versus Deputy Commissioner Of State Tax

Citation: 2022 LiveLaw (Guj) 212

The Gujarat High Court bench of Justice A.J. Desai and Justice Bhargav D. Karia has quashed the order under GST on the grounds that the notice as well as the order were passed on the same date, denying the opportunity of hearing to the assessee.

[Gujarat Land Revenue Code] Once Permission For Conversion Of Agricultural Land Is Granted, Change Of Industries Makes No Difference: High Court

Case Title: Lalitkumar Bhimsen Hemrajani V/S District Collector

Citation: 2022 LiveLaw (Guj) 213

Observing that the concerned agricultural land was already converted under Gujarat Land Revenue Code for 'Non-Agricultural' purpose of cottage industries, the Gujarat High Court has held that it makes no difference if there is a change in the nature of industries and has thus, allowed a petition seeking the revision of plan from 'Marble Cottage Industries' to 'Commercial Purpose'.

Copyright In Artwork Subsists Till Death Of Author & 60 Yrs Thereafter: Gujarat High Court Grants Interim Injunction In Infringement Suit

Case Title: crazy concepts and mazes pvt. Ltd. & 1 other(s) v/s n. Venkta yayadri rao & 1 other(s)

Citation: 2022 LiveLaw (Guj) 214

The Gujarat High Court has held that as per Section 22 of the Copyright Act, 1957, copyright would subsist in the life time of the author and until 60 years from the beginning of calendar year next following the year in which the author dies.

Thus, in a suit pertaining to infringement of artwork, Justice AP Thaker observed that it cannot be said that the copyright of the Plaintiff had come to an end on a particular date and that the actions of the Respondent reproducing the work under a different trade name cannot be injuncted. It observed,

"Copyright would not come to an end on a particular date, it will subsist till the death of the author and even 60 years thereafter. Therefore, admittedly the observations of the trial Court that copyright has expired in 2011 is legally not tenable."

Gujarat High Court Refuses To Quash Case Against Contractor For Dishonoring Cheque Drawn By His Brother's Firm With Similar Name

Case Title: Ayyubkhan Kalekhan Pathan V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 215

The Gujarat High Court has dismissed a petition seeking to quash a case under Section 138 of the Negotiable Instruments Act holding that whether the cheque was issued by the petitioner or his brother who had the same initials was a question to be considered at the stage of trial and prima facie the intention of the petitioner was to avoid paying back the huge sum to the complainant.

Justice Nirzar Desai dismissed a petition wherein the petitioner, a proprietor of AK Construction claimed that his brother's firm, AK Road Constructor was a separate entity and that the complaint against a cheque issued by AK Road Contractor did not have any connection with him.

Registration Act | Relinquishment Of Right In Property Valued Above ₹100 To Be Compulsorily Registered: Gujarat High Court

Case Title: Madhukantaben D/O Somabhai Shankarbhai Patel V/S State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 216

Referring to the Registration Act, 1908, the Gujarat High Court has opined that if any right concerning a property valued above Rs. 100 has been relinquished or extinguished, it requires compulsory registration before the registering authority under the Act.

In the absence of such registration, such relinquishment cannot affect any immovable property comprised therein and the said document cannot be received as evidence of any transaction affecting such property or conferring such power, it added.

Blatant Violation Of Natural Justice: Gujarat High Court Quashes Order Cancelling Licence Of 'K News Channel'

Case Title : K News Channel Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 217

Citing non-compliance with Section 8 of the Gujarat Cinemas (Regulation) Act, 2004 and violation of principles of natural justice, the Gujarat High Court has quashed and set aside an order passed by the District Magistrate, Ahmedabad cancelling the licence of 'K News Channel'.

Operation Of Roads Within Defence Area Absolute Domain Of Defence Authorities: Gujarat High Court

Case Title: Hemant Rameshchandra Rupala V/S Union Of India Thru The Secretary

Citation: 2022 LiveLaw (Guj) 218

Observing that it is the 'absolute domain' of the Ministry of Defence to decide the opening or closing of the road which falls in the defence area, the Gujarat High Court has refused to grant relief to the Petitioners complaining that blocking of a road by the defence authorities was causing them hardship in approaching their society / homes.

"...It is for the army authorities to determine which area is sensitive or more prone to such hazard or which is not or through which a passage can be permitted or not and it is their sole discretion and in absence of any right of any party, a mandate cannot be issued."

Proceedings Under Section 9 Of A&C Act Cannot Be Used For Enforcement Of The Conditions Of A Contract: Gujarat High Court

Case Title: Kanhai Foods Ltd versus A and HP Bakes

Citation: 2022 LiveLaw (Guj) 219

The Gujarat High Court has ruled that issues involving enforcement of the conditions of a Franchise Agreement cannot be the subject matter of an application for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Bench, consisting of Justices N.V. Anjaria and Samir J. Dave, held that conditions of a contract can be enforced only when the rights of the parties are finally adjudged and crystallised by the Arbitrator. The Court ruled that proceedings under Section 9 of the A&C Act are only for interim measures and that they cannot be converted into proceedings where a party can indirectly seek the final relief.

Claim Petition Without Verification, Writ Not Maintainable Against An Order Dismissal Of Claim : Gujarat High Court

Case Title: Pahal Engineers v. The Gujarat Water Supply and Sewerage Board, R/SPECIAL CIVIL APPLICATION NO. 8727 of 2019.

Citation: 2022 LiveLaw (Guj) 220

The High Court of Gujarat has held that a writ petition would not be maintainable against an order of the arbitral tribunal whereby it has rejected the claim of a party on the ground that its pleadings were without verification and affidavit to that effect.

The Single Bench of Justice Vaibhavi D. Nanavati held that once the arbitrator rejects the claims of a party that essentially means a final disclosure of its claims and the order of the arbitrator can be challenged under Section 34 of the A&C Act.

Can't Refuse Arms License Unless Applicant Found Unworthy U/S 14 Arms Act: Gujarat High Court

Case Title : Devshibhai Raydebhai Gadher Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 221

The Gujarat High Court recently allowed a writ petition challenging the order of District Magistrate rejecting the Petitioner's application for obtaining an arms license, stating that he was not found ineligible under Section 14 of the Arms Act, 1959.

Claim For Regularization Of Suspension Period Can't Be Examined In Isolation Pending Challenge To Dismissal From Service: Gujarat High Court

Case Title: Amrishbhai Natubhai Patel V/S State Of Gujarat & 2 Other(S)

Citation: 2022 LiveLaw (Guj) 222

The Gujarat High Court has made it clear that when the service of an employee is dismissed in culmination of disciplinary inquiry on account of misconduct, the plea moved by him for regularization of the period of suspension cannot be considered in isolation.

It added that since the Petitioner had challenged the dismissal before the High Court, the two proceedings will go hand in hand.

"The Court is not inclined to entertain this petition as the claim of the petitioner with regards to the regularization of the period of suspension as prayed for now before this Court, cannot be examined in isolation, pending the challenge to the order of dismissal which the petitioner has already made in a separate petition," Justice AY Kogje said.

'Human Tendency To Wait For Missing Person': Gujarat High Court Says Suit For Declaring Child Missing Since 1984 Dead Not Barred By Limitation

Case Title: Mansinh Amarsinh Devdhara V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 223

The Gujarat High Court has recently explained it is a human tendency to wait for the returning of a missing family member for many years and therefore, in a suit for declaration for the death of such person, it cannot be said that the suit is barred by limitation.

The Appellant-Original Plaintiff had filed a suit for a declaration that his son was missing since 31.01.1984 and could not be found till the filing of the suit. Therefore, he sought that the Nagarpalika, Surat declare his son dead and make an entry to this effect. No written statement was filed by the Defendant-State. However, the suit was dismissed by the Trial Court and a first appeal against the same was also unsuccessful on ground of limitation.

[Altering Father's Name In Birth Certificate] Biological Father's Consent Not Required In Absence Of Challenge To Adoption Deed: Gujarat High Court

Case Title : Chhayaben @ Hetalben Atulbhai Asodariya Versus The Registrar Of Birth And Death/Chief Officer

Citation: 2022 LiveLaw (Guj) 224

The Gujarat High Court recently allowed a writ seeking direction upon the Registrar of Birth and Death/Chief Officer, to delete the name of a minor's biological father's name from his birth certificate and replace it with his adoptive father's name.

For this, Justice A.S. Supehia opined that neither is the consent of the biological father required to be obtained by the registrar nor is he required to be arraigned as a party to the writ petition, as the adoption deed was not in question.

'Rejection Of A Bail In A Non-Bailable Case At The Initial Stage And The Cancellation Of Bail Have To Be Dealt On A Different Basis': Gujarat HC

Case Title: Aasifbhai Hajiabdul Bhaya V/S State Of Gujarat & 1 Other(S)

Case No.: R/CR.MA/14875/2017

Citation: 2022 LiveLaw (Guj) 225

Observing the difference between the rejection of bail in a non-bailable case and the cancellation of bail, the Gujarat High Court has quashed the bail order of an Accused person on the ground that 'misused the liberty and grossly violated the conditions of the bail.'

The Applicant (Original Complainant) indicated that goods worth INR 42,35,000 were stolen from his house and as a result a complaint was registered for offences punishable under Sec 457, 454, 380 and 114 of the IPC. However, it was submitted that Respondent No. 2 (Accused person) committed the crime of a similar nature during the pendency of the instant proceedings and therefore, bail should not be allowed to continue. There were also additional averments that the Accused person was served notice in 2017 for the instant application and yet he chose not to cooperate with it. The APP submitted that the Accused person had committed several offences of similar nature, including during the pendency of the petition. Two more offences were committed in 2021 and therefore, bail ought to be cancelled.

Delay In Appointment Due To No Fault Of The Candidate Cannot Be Allowed To Result In Delayed Promotion: Gujarat High Court

Case Title : Bhalodiya Ravikumar Jaynatilal Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 226

A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.

Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.