Gujarat High Court Weekly Round Up: September 5 To September 11, 2022

Gulamhusen Dadamiya Pir Versus Union Of India 2022 LiveLaw (Guj) 368

Patel Rameshchandra Mangaldas V/S State Of Gujarat 2022 LiveLaw (Guj) 369

Vithal Bogra Shetty V/S Board Of Trustees 2022 LiveLaw (Guj) 370

State Of Gujarat V/S Rajeshbhai Ramubhai Patel & 5 other(s) 2022 LiveLaw (Guj) 371

Sharda Chimanbhai Lalbhai V/S Dinesh Mohanbhai Prajapati 2022 LiveLaw (Guj) 372

Gharshala Sanstha v/s Jayshriben Ghanshyamlal Bhatt & 5 other(s) 2022 LiveLaw (Guj) 373

Ajaysinh Ghanshyamsinh Jadeja V/S State Of Gujarat 2022 LiveLaw (Guj) 374

Tushar Arun Gandhi v. State of Gujarat 2022 LiveLaw (Guj) 375

Shivpal Singh Chaudhari V/S Central Bureau Of Investigation 2022 LiveLaw (Guj) 376

Sanjay Bhulabhai Patel V/S Pankaj Vinodkumar Patni 2022 LiveLaw (Guj) 377

Judgments/Orders of the week

"No Material To Suggest His Involvement In Any Anti-National Activity": Gujarat High Court Quashes Passport Impounding Order

Case title - Gulamhusen Dadamiya Pir Versus Union Of India

Case Citation: 2022 LiveLaw (Guj) 368

The Gujarat High Court recently quashed an order of the passport authorities impounding the passport of one, Gulamhusen Dadamiya Pir on the ground that he was engaged in some anti-national activities.

It is interesting to note that the passport of the petitioner was not impounded by invoking the provisions of Section 10(3)(c) of the Passports Act, 1967, which refers to the impounding of a passport, if the holder of such passport is involved in any activities, which is against the interest of the sovereignty, integrity and the security of India.

Fraudulent Power Of Attorney | Onus Of Due Diligence Before Entering Into Sale Transaction Is On Property Purchaser: Gujarat High Court

Case Title: Patel Rameshchandra Mangaldas V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 369

The Gujarat High Court has reiterated that the onus of performing due diligence with respect to a property before entering into any transaction is on the intending purchaser.

The observation was made while deciding the anticipatory bail application moved by one such property purchaser, who was booked for Cheating under IPC, for purchasing the subject property on the basis of a fraud power of attorney.

Intra-Court Appeal Not Maintainable Against Order U/Art 227 Unless Exercise Of Original Jurisdiction Under Article 226 Is Involved: Gujarat HC

Case Title: Vithal Bogra Shetty V/S Board Of Trustees

Citation: 2022 LiveLaw (Guj) 370

The Gujarat High Court has distinguished between the right of an 'intra-court appeal' under Article 226 and Article 227 of the Constitution and held that an intra-court appeal does not lie against the judgement of a Single Judge when the power of superintendence is exercised by examining the subordinate court's order.

In other words, Clause 15 of the Letters Patent Act, does not permit an appeal against the order passed by a Single Judge of the Court in an Art 227 petition.

Chief Justice Aravind Kumar and Justice Ashutosh Joshi stated:

"Where a petition is filed both under Article 226 and 227 of the Constitution of India, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the points already adjudicated upon by the subordinate court or tribunal, then it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original jurisdiction."

Appellate Courts Must Bear In Mind There Is Prejudice In Favour Of Accused In Case Of Acquittal: Gujarat High Court

Case Title: State Of Gujarat V/S Rajeshbhai Ramubhai Patel & 5 other(s)

Citaiton: 2022 LiveLaw (Guj) 371

The Gujarat High Court, while dismissing an appeal against acquittal in a caste-based crime, reiterated that the Appellate Court has a limited scope of interfering with acquittal appeals since prejudice lies in favour of the Accused. Further, the Appellate Court can only interfere with the order of the Trial Court provided the order was manifestly unjust, perverse or contrary to law.

In the instant case, Justice AC Joshi observed that there were several contradictions and omissions in the statement of the Prosecution Witnesses and notably, the complaint was registered only after 11 days for which there was no explanation. Additionally, the alleged incident had occurred with 3 persons and yet the complaint was lodged against 6 persons. All these circumtsances were factored in by the trial Court. Hence, it was clarified:

"Appellate Court has full power to review, reappreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court."

Entire Salary Differential Of Higher Post Can't Be Granted Merely Because Additional Duties Were Undertaken By Workman Of Lower Post: Gujarat HC

Case Title: Sharda Chimanbhai Lalbhai V/S Dinesh Mohanbhai Prajapati

Citation: 2022 LiveLaw (Guj) 372

The Gujarat High Court has held that merely because an employee appointed to Class-IV post is handed over additional duties with respect to a higher post for a temporary period, may be during the leave vacancy of actual employee, cannot demand entire salary differential.

The Court took into account the differential aspect of appointment in Class-IV and Class-III category and concluded that merely because the petitioner, a Class-IV workman was doing additional work of Class-III category, it did not imply that he will be entitled to the pay-scale of Class-III post.

Gujarat Educational Institutions Services Tribunal Can Direct Execution Of Its Orders: High Court

Case Title: Gharshala Sanstha v/s Jayshriben Ghanshyamlal Bhatt & 5 other(s)

Citation: 2022 LiveLaw (Guj) 373

In a recent order, the Gujarat High Court has confirmed that while deciding applications u/s 10 of the Contempt of Courts Act 1971 for non-compliance of the order, the Gujarat Educational Institutions Services has powers under Clause 14 of the Guj. Primary Education Tribunal (Procedure) Order, 1987 to direct the execution of its orders.

However, Justice Bhargav Karia explained that the Executing Court cannot go beyond the decree. In light of this, the Single Judge Bench held that the Tribunal was correct in enforcing the compromise arrived at by both the Petitioner Trust and the Teachers to pay the pay-scales in accordance with Clause 2 of the terms of the compromise.

Gujarat Mining Rules | Seized Property Along With Written Complaint Must Be Produced Before Competent Court Within 45 Days: High Court

Case Title: Ajaysinh Ghanshyamsinh Jadeja V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 374

The Gujarat High Court has clarified in the context of the Gujarat Mining Rules, 2017 that the investigator must approach the Sessions Court with a written complaint and produce the seized properties with the Court on the expiry of the specified time period. Failure to do this exercise, would result in the frustration of seizure and bank guarantee. Consequently, the seized property will have to be released in favour of the person from whom it was seized without bank guarantee.

Gujarat High Court Rejects PIL Filed By Mahatma Gandhi's Great Grandson Against Sabarmati Ashram Revamp Plan

Case title – Tushar Arun Gandhi v. State of Gujarat

Case Citation: 2022 LiveLaw (Guj) 375

The Gujarat High Court dismissed a Public Interest Litigation (PIL) plea by Tushar Gandhi, the great-grandson of Mahatma Gandhi, challenging the Gujarat government's decision to revamp/redevelop the Sabarmati Ashram in Ahmedabad at the estimated cost of ₹1,200-crore.

The bench of Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri observed that the proposed project would promote the ideas and philosophy of Mahatma Gandhi and it would be beneficial for mankind at large and that the revamped Gandhi Aashram would be a place for learning for mankind of all age groups.

Very Serious Work Of Building Roads Compromised: Gujarat HC Declines Pre-Arrest Bail To Two Accused Of Paying ₹15 Lakhs Bribe To NHAI Chief GM

Case Title: Shivpal Singh Chaudhari V/S Central Bureau Of Investigation

Citation: 2022 LiveLaw (Guj) 376

The Gujarat High Court has declined anticipatory bail to the Managing Directors of two private companies, accused of bribing a "very senior officer" of the National Highways Authority of India (NHAI).

The Bench comprising Justice Nikhil Kariel observed that grant of anticipatory bail may impact a large number of people, more particularly since the accused allegedly bribed the incharge of an organization which has a "very serious responsibility" of building and maintaining important highways within the State.

CPC | 'Suit & Counterclaim Are Treated As Unified Proceedings Which Can Form Basis Of Filing Appeal': Gujarat High Court

Case Title: Sanjay Bhulabhai Patel V/S Pankaj Vinodkumar Patni

Citation: 2022 LiveLaw (Guj) 377

The Bench comprising Justice Nisha Thakore at the Gujarat High Court has held that in a suit where counter claim is filed, the suit and the counterclaim are required to be treated as unified proceedings. This unification of the proceedings forms the basis of filing of appeal.

The High Court has further explained that the term 'plaint' provided u/s 2(c) of the Gujarat Court Fees Act, 2004 also includes 'counterclaim.' Even as per Order VIII Rule 6A(4) of the Code, counterclaim has to be treated as a plaint for all purposes. Therefore, once the suit and the counterclaim are treated as 'unified proceedings' and the same involves two or more distinct cause of action, the aggregate valuation of the plaint and the counterclaim shall be considered for the purpose of determination pecuniary jurisdiction, Justice Thakore explained.