Gujarat High Court Weekly Round-Up: May 2 To May 8, 2022

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

Orders/Judgments of the Week

'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.