Gujarat High Court Weekly Round Up: June 20 To June 26, 2022

Thakarshibhai Bhurabhai Jajal Versus Gujarat State Information Commissioner 2022 LiveLaw (Guj) 227

Sadbhav Engineering Limited V/S Ghanshyambhai B Pandya & 1 Other(S) 2022 LiveLaw (Guj) 228

M/S. Kushal Limited Through Auto. Sign. And Managing Director Mr. Yogesh Ghanshyambhai Patel v. M/S. Tirumala Technocast Private Limited 2022 LiveLaw (Guj) 229

Lords Inn Hotels And Developers Ltd. V. Raysons Residency Pvt. Ltd 2022 LiveLaw (Guj) 230

Pratapdan Shamaldan Gadhv V/S State Of Gujarat 2022 LiveLaw (Guj) 231

Nileshbhai Narayanbhai Mistry V/S State Of Gujarat 2022 LiveLaw (Guj) 232

Ramilaben Vijaykumar Patel Versus Na 2022 LiveLaw (Guj) 233

Anopsinh Harisinh Bhagora V/S State Of Gujarat & 2 Other(S) 2022 LiveLaw (Guj) 234

Gemalbhai Motibhai Solanki V/S Deputy Executive Engineer 2022 LiveLaw (Guj) 235

Darul Ullunarabiyyah Islamiyyah V/S Maulavi Mahmrudul Hasan & 1 Other(S) 2022 LiveLaw (Guj) 236

Balkrishna Spintex Private Limited versus The New India Assurance Company Limited 2022 LiveLaw (Guj) 237

Kirankumar Vanmalidas Panchasara V/S State Of Gujarat 2022 LiveLaw (Guj) 238

Mahendrasinh Himmatsinh Chauhan V/S State Of Gujarat 2022 LiveLaw (Guj) 239

Kajalben Rakeshbhai Bhadiyadra V/S The Registrar, Registration Of Birth And Death 2022 LiveLaw (Guj) 240

Madhusudan Gunvantray Pandya Versus Saurashtra University 2022 LiveLaw (Guj) 241

Adi Enterprises Versus Union Of India 2022 LiveLaw (Guj) 242

ORDERS/JUDGMENTS OF THE WEEK

RTI Act | Penalty U/S 20(2) For Destruction Of Information Sought Not Attracted In Absence Of Malafide: Gujarat High Court

Case Title: Thakarshibhai Bhurabhai Jajal Versus Gujarat State Information Commissioner

Citation: 2022 LiveLaw (Guj) 227

The Gujarat High Court has held that where any information sought under the Right to Information Act is destroyed and it is not the case of malafide destruction of information, penalty under Section 20(2) of RTI Act shall not be attracted.

Section 20 stipulates disciplinary action against a Public Information Officer where information sought is not supplied within the time specified, or is malafidely denied or incorrect information is knowingly given or information is destroyed.

S.33C Industrial Disputes Act Is For Execution Of Award, Labour Court Can't Enter Adjudicatory Process To Decide Disputed Facts: Gujarat High Court

Case Title: Sadbhav Engineering Limited V/S Ghanshyambhai B Pandya & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 228

The Gujarat High Court has made it clear that Section 33C of the Industrial Disputes Act, 1947, is for the purpose of execution of the award or dealing with the pre-existing right or benefit arising out of the settlement of a workman against his employer. The same does not make way for a Labour Court to enter into an adjudicatory process, giving a finding on disputed facts between the parties.

The Bench comprising Justice AY Kogje was hearing a challenge to a Labour Court's order directing the Petitioner-organisation to pay full wages to the respondent-workman from 2006-2013.

Dispute Arising Out Of Agreements Relating To Property Used Exclusively In 'Trade & Commerce' Constitutes "Commercial Dispute": Gujarat High Court

Case Title: M/S. Kushal Limited Through Auto. Sign. And Managing Director Mr. Yogesh Ghanshyambhai Patel v. M/S. Tirumala Technocast Private Limited

Citation: 2022 LiveLaw (Guj) 229

The Gujarat High Court has held that the acid test to determine whether or not a dispute relating to property is a "commercial dispute" under Commercial Court's Act, 2015 is that the property in question is used "exclusively" in trade or commerce.

The Bench comprising Justice NV Anjaria and Justice Samir Dave observed, "Dispute arising out of agreements relating to property used exclusively in trade and commerce would constitute a commercial dispute...a commercial dispute would otherwise not cease to be commercial dispute merely because action involves recovery of immovable property or realisation of money out of immovable property or involve any other relief pertaining to immovable property."

Court Can't Decide Disputed Questions Of Facts U/S 11(6) Arbitration Act, Question Of Arbitrability Can Be Examined By Arbitral Tribunal: Gujarat HC

Case Title: Lords Inn Hotels And Developers Ltd. V. Raysons Residency Pvt. Ltd

Citation: 2022 LiveLaw (Guj) 230

High Court cannot decide disputed questions of facts in a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of arbitrator, the Gujarat High Court has held.

The Bench comprising Chief Justice Aravind Kumar observed, "All these issues including arbitrability can be examined by the Arbitral Tribunal itself."

The observation was made while deciding the application preferred by the Petitioner for appointment of sole arbitrator in connection with a dispute arising from agreement relating to operation of a restaurant owned by the respondent.

'They Were Living Separately': Gujarat High Court Grants Anticipatory Bail To Police Personnel & His Wife Accused Of Harassing Daughter-in-Law

Case Title: Pratapdan Shamaldan Gadhv V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 231

The Gujarat High Court granted anticipatory bail to a public servant employed in the Police force and his wife, in a case of dowry harassment initiated at the instance of their daughter in law.

Justice Nikhil S Kariel observed that merely because the accused father-in-law is in Police is no ground to deny him anticipatory bail and adequate conditions can be imposed to prevent tampering of evidence. In fact, the bench was of the view that the father-in-law being a public servant, there could not be any apprehension that he would flee from trial.

'Would Unsettle The Settled Things': Gujarat High Court Dismisses Plea For Removing Alleged Encroachments On Public Land Citing Inordinate Delay

Case Title: Nileshbhai Narayanbhai Mistry V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 232

The Gujarat High Court dismissed a PIL filed by a freelance reporter and RTI activist, seeking removal of alleged encroachments on plots reserved for developing public gardens, citing inordinate delay in approaching the Court.

The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri observed that the petition came to be filed 16-19 years after the allotment of the plots had been made and there was not even a whisper in the petition as to why the petitioner did not raise his "little finger" from 2003 / 2006, particularly when he claims to be an RTI activist, a public spirited person and espousing the cause of the public.

Can't Permit Single Mother To Sell Minor's Share In Property Under Garb Of Child's Maintenance Sans Material Detailing Income & Expenses: Gujarat HC

Case Title : Ramilaben Vijaykumar Patel Versus Na

Citation: 2022 LiveLaw (Guj) 233

The Gujarat High Court has held that even if a mother seeks to sell off the property of her minor child, despite her being a natural guardian, she can be looked at with suspicion and be denied permission to sell off such property if relevant material details are not provided.

'Parity Of Punishment': Gujarat High Court Reduces Deduction Of Pension From 100% To 25% Of Sub-Inspector Accused Of Aiding Escape Of Prisoner

Case Title: Anopsinh Harisinh Bhagora V/S State Of Gujarat & 2 Other(S)

Citation: 2022 LiveLaw (Guj) 234

Emphasising on the principles of proportionality and parity while determining punishment, the High Court has reduced punishment of deduction of pension from 100% to 25% imposed on a sub-inspector accused of aiding an under-trial to escape police custody.

The Petitioner-accused challenged the order of 2015 passed by the Respondent-State wherein the Petitioner's monthly pension was deducted 100%. The Petitioner also challenged the order where the Respondent-State had refused to reconsider the impugned order.

Industrial Disputes Act | Workmen Terminated In Violation Of Retrenchment & Re-Employment Procedure U/S 25G & 25H Entitled To Reinstatement: Gujarat HC

Case Title: Gemalbhai Motibhai Solanki V/S Deputy Executive Engineer

Citation: 2022 LiveLaw (Guj) 235

The Gujarat High Court has said that where the service of a workman is terminated in violation of the procedure for Retrenchment & Re-Employment provided under Sections 25(G) and 25(H) of the Industrial Disputes Act, an order of reinstatement ought to follow.

Holding thus, Justice Biren Vaishnav set aside the order of the Labour Court which granted backwages worth Rs. 72,000 to the terminated workmen, and directed their reinstatement in service, with continuity of service. It said,

"Compensation in lieu of reinstatement will be detrimental to the petitioners who have worked for over a period of 20 years."

Industrial Disputes Act Applicable To Institution Registered With Wakf Board, Engaged In Commercial Activity: Gujarat High Court

Case Title: Darul Ullunarabiyyah Islamiyyah V/S Maulavi Mahmrudul Hasan & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 236

The Gujarat High Court has held that an institution registered under the Wakf Board, indulging in commercial activities such as printing magazines apart from imparting religious education, is an 'industry' for the purposes of the Industrial Disputes Act.

It added that a 'Maulvi' who is entrusted with the management of such commercial activity, in the present case managing all the printing material, etc., is a 'workman' under the Act and thus, the provisions under the Act relating to termination of service will be attracted.

A Party Is Not Entitled To Invoke The Arbitration Clause After Signing The Discharge Voucher Without Any Protest Or Demur: Gujarat High Court

Case Title: Balkrishna Spintex Private Limited versus The New India Assurance Company Limited

Citation: 2022 LiveLaw (Guj) 237

The Gujarat High Court has ruled that a party is not entitled to invoke the arbitration clause after it had signed the discharge voucher without any protest or demur, since no arbitrable dispute could be said to subsist.

The Single Bench of Chief Justice Aravind Kumar held that an application for referring the dispute to arbitration could not be entertained merely on the ground that the party had, within 15 days from the receipt of an amount, contended that the said amount was received by it under duress.

S.439CrPC- Bail-Court Cannot Impose Any Condition Which Amounts To Exercising Powers Envisaged Under Any Other Enactment: Gujarat High Court

Case Title: Kirankumar Vanmalidas Panchasara V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 238

A single judge bench of the Gujarat High Court consisting of Justice Niral R. Mehta held that while exercising its powers under Section 439 of Cr.P.C., the court could not impose any condition which amounted to it exercising powers envisaged under some other enactment. The court held that any such condition imposed would be completely beyond the court's jurisdiction.

'Horrifying Side Effects Of Industrial Growth': Gujarat High Court Refuses To Quash FIR For Dumping Chemicals In Open Land

Case Title: Mahendrasinh Himmatsinh Chauhan V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 239

The Gujarat High Court has refused to quash a FIR lodged for violation of the Environment (Protection) Act against a factory owner for allegedly dumping chemicals in open land by excavating pits.

Remarking that the case is nothing but a glaring example of "horrifying side effects of industrial growth", Justice Niral R. Mehta refused to exercise the limited jurisdiction under Section 482 of CrPC. The bench observed,

"In my considered opinion, the present case is a glaring example of horrifying side effects of industrial growth, wherein not only society at large is being affected, but it is prejudicial to the cattle as well. Therefore, in my view, when the industrialization is achieving its peak, then our eyes must not be closed against those errant, who, for the sake of their meager profit, manipulating with the nature and life of human."

Registrar Can't Refuse To Issue Birth Certificate In Adoptive Father's Name In Absence Of Challenge To Adoption Deed: Gujarat High Court

Case Title: Kajalben Rakeshbhai Bhadiyadra V/S The Registrar, Registration Of Birth And Death

Citation: 2022 LiveLaw (Guj) 240

The Gujarat High Court has reiterated that a Registrar under the Births and Deaths Registration Act is bound to issue certificate in the name of adoptive father where there is no rebuttal to the adoption deed of the Applicant.

The observation was made by Justice AS Supehia in a petition moved by the mother of one 'Nidhi', seeking to include her second husband/ Nidhi's adoptive father's name in Nidhi's birth certificate. The bench observed that the Registrar cannot insist on a decree of the Court with regard to the adoption since as per Section 16 of the Hindu Adoption and Maintenance Act, 1956, a "presumption" is drawn in favour of the Petitioner under Section 16 of the Adoptions Act, since there is no rebuttal to the adoption deed of her daughter "Nidhi".

Conducting Exams For LLB Admissions- University Rules Prevails Over Bar Council Of India Rules: Gujarat High Court

Case Title : Madhusudan Gunvantray Pandya Versus Saurashtra University

Citation: 2022 LiveLaw (Guj) 241

A single-judge bench of Justice Vaibhavi D. Nanavati of the Gujarat High Court held that in terms of conduction of examination and results for admission to LLB course, the rules of a University would prevail over the Rules of Bar Council of India.

In this case, the High Court upheld Saurashtra University rules that prohibited admission for an LLB course in cases where the graduate had not passed their examination in a single attempt.

Gujarat High Court Directs Dept. To Refund IGST On Ocean Freight Along With The Interest

Case title: ADI Enterprises Versus Union Of India

Citation: 2022 LiveLaw (Guj) 242

The Gujarat High Court bench of Justice A.J. Desai and Justice Bhargav D. Karia has directed the department to refund IGST on ocean freight along with the interest.

The applicants/petitioners have sought the direction to the respondents/department to grant a refund of the amount of IGST already paid by the applicants pursuant to Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28.6.2017 with appropriate interest on the refund.