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Gujarat High Court: 60 Important Decisions Of 2021
Sparsh Upadhyay
1 Jan 2022 7:34 PM IST
As we step into year 2022, LiveLaw brings to you a bunch of important decisions from the Gujarat High Court of 2021. This digest includes 60 important orders and judgments.Gujarat High Court 1. 'Orders Passed To Facilitate Private Commercial Activity': Gujarat High Court Raps Authorities, Sets Aside Father-Son Externment Orders [ Digesh Harishchandra Solanki & Harishchandra...
As we step into year 2022, LiveLaw brings to you a bunch of important decisions from the Gujarat High Court of 2021. This digest includes 60 important orders and judgments.
Gujarat High Court
1. 'Orders Passed To Facilitate Private Commercial Activity': Gujarat High Court Raps Authorities, Sets Aside Father-Son Externment Orders [ Digesh Harishchandra Solanki & Harishchandra Motilal Solanki v. State of Gujarat and Ors.]
The Gujarat High Court on Monday (11th January) reprimanded the authorities for externing a son and his father from Navsari district "to facilitate a private commercial activity of a private individual."
The Bench of Justice Paresh Upadhyay was hearing the pleas filed by the son and his father, challenging identical externment orders passed by the Sub-Divisional Magistrate, Navsari dated 04th February 2020.
2. Animals, Like Human Beings Can Understand Physical/Mental Pain; They Do Feel Severity Of Physical Harm Being Inflicted: Gujarat High Court [Akrambhai Shaukatbhai Posti v. State Of Gujarat]
Noting that animals, like the human beings have the capability of comprehending the physical and mental pain and that they do feel severity of the physical harm inflicted on them, the Gujarat High Court on Tuesday (12th January) denied bail to a man accused of various offences punishable under The Prevention of Animal Cruelty Act.
The Bench of Justice Bela M. Trivedi further observed that the Prevention of Animal Cruelty Act and the Animal Preservation Act have been enacted to punish severely the persons indulged in inflicting cruelty to the animals.
3. Gujarat High Court Directs Bharuch District Magistrate To Expedite Process On Application Of Man To Convert [Jigneshkumar Manubhai Patel v. District Collector, Bharuch]
While hearing the plea of a 32-year-old Hindu man, who wishes to convert to Islam, the Gujarat High Court last month directed Bharuch district authorities to expedite the conversion process.
The Bench of Justice Bela M. Trivedi issued the aforesaid direction as Petitioner Jignesh Patel submitted before the Court that Bharuch's collector had withheld his application for more than a year, despite SDM's inquiry report (filed in February 2020) establishing that he was under no pressure from anyone to convert to Islam.
4. "Undue Fervor Shown By Cops As This Was Inter-Religious Marriage": Gujarat High Court Sets Couple Free, Orders IG-level Inquiry [Ghasura Riyazkhan Jitubhai v. State Of Gujarat]
While underlining that the facts (of the case) are quite glaring and also shocking and ordering the release of an interfaith couple from the Custody of cops, the Gujarat High Court on Tuesday (19th January) quashed and set aside the order of Remand (dated 18th January 2021) passed by the Magistrate qua the corpus Nisar khan (Husband).
The Court was hearing a habeas corpus plea filed by the brother of the husband, Nisarkhan Jitubhai Ghasura, stating that the latter was illegally detained and remanded to police custody, following his recent marriage to his 29-year-old childhood friend from another community.
The Bench of Justice Sonia Gokani & Justice Sangeeta K. Vishen directed the Range IG concerned to inquire into the matter, more particularly, considering the conduct of Respondent Nos. 5 and 6 (cops), in whose custody, the couple has been detained for all these days, and report to the DIG.
While conducting such inquiry, the Range IG has been directed to bear in mind that this is the case, where, the undue fervor is shown, on account of this being an inter-religion marriage.
5. Gujarat HC Proposes To Prohibit Social Exclusion Of Women Based On Their Menstrual Status At All Private And Public Places, Including Religious & Educational [Nirjhari Mukul Sinha v. Union Of India]
The Gujarat High Court has proposed to prohibit the social exclusion of women on the basis of their menstrual status at all places, be it private or public, religious or educational.
Underlining that all religions (excluding Sikhism) refer to menstruating woman as "ritually unclean", the Gujarat High Court recently proposed a set of guidelines that the State Government should follow to end Menstruation Taboo.
The Bench of Justice J. B. Pardiwala and Justice Ilesh J. Vora was hearing a public interest litigation (PIL) filed in connection with an unfortunate incident wherein, over 60 girls in a hostel of Shree Sahjanand Girls Institute in Bhuj town of Kutch were reportedly forced to strip to "prove" they were not menstruating.
6. "No Person Has Right To Retain Encroached Land": Gujarat High Court Denies Relief To Evicted Slum Dwellers; Asks State To Frame Land Allotment Policies [ Vora Zakirhusain Valibhai v. State Of Gujarat]
In a significant judgment touching upon the interplay of slum dwellers' right to shelter and menace of land encroachment, the Gujarat High Court has held,
"Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor."
However, "No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose."
7. Corruption Like A Termite Or A Poisonous Snake Which Has Penetrated Deeply Into Our Systems: Gujarat High Court [Ramendrasinh Jaysinh Kushvah v. State Of Gujarat]
While denying pre-arrest bail to an assistant director of Gujarat State Land Development Nigam Ltd, Ramendrainh Kushvah, the Gujarat High Court on Thursday (11th February) made scathing remark against the corrupt practices of the bureaucrats.
The Bench of Justice R. M. Sareen, while hearing the pre-arrest bail filed by the Petitioner in connection with the alleged Khet Talavadi scheme (farm ponds) scam, remarked,
"Corruption has become a social menace and is very much rampant nowadays. It is like a termite or a poisonous snake (that) has penetrated deeply into our systems."
8. "Purity Of Election Process Irretrievably Sullied; SEC Can't Be Silent Spectator": Gujarat HC On Tearing of Congress Candidates' Mandate Papers In Civic Polls [Sarifaben Isubbhai Mahetar v. State Election Commission]
Underlining that the Election Commission is empowered to issue all necessary directions for the purpose of conducting smooth, free and fair elections, the Gujarat High Court on Monday (15th February) rapped the State Election Commission (SEC) over an "unruly incident".
The Bench of Justice J.B. Pardiwala and Justice Ilesh J. Vora reminded the SEC of its power in a plea filed in connection with an unruly incident, wherein 32 Congress party Candidates' mandate papers for municipality polls in Palitana town were allegedly torn in Bhavnagar district on the last day of filing nominations by "hooligans".
9. No Recovery Should Be Made At The Time Of Search/Inspection Under Any Circumstances: Gujarat High Court Directs GST Officials [M/S Bharat Acid And Chemicals, Proprietor Kanubhai Manilal Patel v. Union Of India ]
In a crucial order, the Gujarat High Court on Tuesday (16th February) directed the Central Board of Indirect Taxes and Customs as well as the Chief Commissioner of Central/State Tax of the State of Gujarat, inter alia, to make no recovery in any mode at the time of search/inspection proceedings under Section 67 of the Central/Gujarat Goods and Services Tax Act, 2017 under any circumstances.
The Bench of Justice J. B. Pardiwala and Justice I. J. Vora issued this interim direction following various complaints of coercive recovery by GST officials during the search operations.
10. Inter-Faith Marriage- Gujarat HC Directs Police To Escort Woman To Ahmedabad To Register Marriage, Questions Police For Calling Her To Police Station After Sunset [Samirkhan Faizullahkhan Pathan v. State Of Gujarat]
The Gujarat High Court on Monday (08th February) asked the Gujarat Police to ensure that a Lok Rakshak Dal (LRD) woman be provided safe passage from the Junagadh academy to Ahmedabad so that she could solemnise her marriage with a Muslim Man under the Special Marriages Act.
The Bench of Justice Sonia Gokani and Justice Sangeeta K. Vishen was hearing the Habeas Corpus plea of one Samirkhan Faizullahkhan Pathan seeking production of his partner, the LRD trainee, before the court.
11. "Education Should Never Be Compromised": Gujarat High Court Directs Govt. To Ensure That No Child Drops Out Due To Inability To Pay Fees [Suo Moto v. State Of Gujarat, through The Principal Secretary & 1 other(s)]
While noting that Education is something which should never be compromised, the Gujarat High Court recently directed the State Government to ensure that the inability to pay the fees should not compel the parents to stop providing education to their children.
It may be noted that the Bench of Chief Justice Vikram Nath and Justice J. B. Pardiwala had taken up a public interest litigation (on its own motion) based on a survey done by the Indian Institute of Management Ahmedabad (IIM Ahmedabad) and UNICEF Gujarat.
The Gujarat High Court has registered a suo moto PIL to monitor certain important issues touching the life and liberty of the weaker sections of the Society, and also to deal with their valuable right to housing, right to shelter and right to life.
Noting that the abovementioned fundamental rights of the weaker sections of the society are often defied, a Division Bench comprising Chief Justice Vikram Nath and Justice Ashutosh J. Shastri registered a PIL titled 'To Regulate Road Discipline And To Give Shelter To Weaker Section'.
13. 'Such Tactics Need To Be Nipped In The Bud': Gujarat HC Criticizes Police For Misusing PASA Act To Settle Personal Disputes Between Parties [Rohitbhai Laxmanbhai Luni v. Commissioner Of Police, Surat & Ors.]
While dealing with an application filed by the Petitioner apprehending his detention under the Gujarat Prevention of Antisocial Activities Act, 1985, in connection to the offence of kidnapping/ extortion, a Single Bench of Justice Paresh Upadhyay took note of the rampant misuse of the PASA Act by the Police authorities to settle scores between private parties.
"This is one of such examples, where it is the police authorities who take upon such responsibility to settle the financial transaction / disputes between the parties, with the aid / threat of PASA," the Bench observed. It added, "The filing of such FIR and the readiness of the police to register the FIR itself is an aspect, which need not be gone into in this case, however suffice it to hold that it is more an arm- twisting by the complainant with the aid of local police authorities. Such tactics need to be nipped in the bud."
Stressing the need for transparency in the publication of testing data and availability of amenities in relation to COVID-19, a Bench of Chief Justice Vikram Nath and Justice Bhargav Kania underscored that transparent and honest dialogue by the State would generate trust amongst general public.
In six important directions, the Gujarat High Court has called upon the state to reveal essential data relating to the COVID-19 situation in the state and for a transparent dialogue with the public to foster trust. The order comes in a suo moto case initiated by it to take stock of the COVID-19 situation in the State.
Also Read: Gujarat Govt Figures On COVID19 Not Matching With Actual Positive Cases: Gujarat High Court
15. Reasonable Remdesivir Distribution Policy Needed, Sensitize & Educate Public To Break COVID Chain: Gujarat High Court To State Govt [Suo Moto v. State of Gujarat]
Hearing the suo motu proceedings initiated by it to take stock of the surge in COVID-19 cases in the state of Gujarat, a Bench of Chief Justice Vikram Nath and Bhargav D Karia asked the state Government to come up with Reasonable Remdesivir Distribution Policy.
The Court flagged concerns regarding the procurement, supply and distribution of Remdesivir injection apart from the protocol of its use, application, and administration. It noted that if the Government does not have any surplus or if it is unable to cater to its own in-house demand, it cannot provide it to the private sector.
16. Student Misses Exam As His 'Mental Health Deteriorated During Lockdown', Gujarat HC Allows Him To Take Supplementary Exam [Krishabh Kapoor v. Sardar Vallabhbhai National Institute of Technology, Surat]
A Single Bench of Justice NV Anjaria allowed an Engineering student, who claimed that his mental health deteriorated during the Lockdown and thus, he failed to take the earlier semester exams due to depression, to take the supplementary exam. It observed that the petitioner is not placed in the irreversible situation and that the petition does not become meaningless.
17. Unless Self-Administered, No Vaccination Can Cure Evil Of Virus Of Commercial Mindedness Of Educational Institutions: Gujarat High Court [Jawal Suraj Chhasiya v. Dean, Surat Municipal Institute Of Medical Education And Research]
A Single Bench of Justice NV Anjaria came down upon Municipal Institute of Medical Education at Surat, for insisting on payment of late fees penalty and cheque bounce charges from a MBBS student, even though he had cleared the tuition fees and other ancillary charges. The student was even prevented from undertaking the COVID-19 duty and vaccination duty assigned to him as part of an internship, despite payment of tuition fees.
"No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education," the Court observed.
A Decision Bench of Chief Justice Vikram Nath and Bhargav D Karia expressed its unhappiness over the response filed by the State Government with respect to the Covid-19 situation in the State.
The main issue which the Court discussed was a policy of admitting only such patients who arrive in 108 Ambulance and denying admission to such Covid-19 patients who reach hospitals in a private vehicle. "No matter from which vehicle (private or government) patients are coming to the hospitals. How can doctors say that if you are not coming from a 108 ambulance, we will not treat you and will let you die?" the Bench remarked.
A Division Bench of Chief Justice Vikram Nath and Justice Bhargav D Karia asked the Ahmedabad Municipal Corporation (AMC) to come up with an online dashboard for providing real-time updates on the availability of different category of beds in different Covid-19 hospitals.
"We are very pained at the State's approach and Corporation's approach. Orders passed by this Court are being completely ignored. For last three orders, we have been mentioning this issue of real-time updates. But till today, nothing has been done by the State or the Corporation," it observed.
20. "No Express Bar Of Application Of Anticipatory Bail Under Sec. 438 CrPC To Children In Conflict With Law Under JJ Act": Gujarat High Court [Kureshi Irfan Hasambhai v. State Of Gujarat]
A Single Judge bench comprising of Justice AY Kogje observed that there is no express bar of application of anticipatory bail under sec. 438 CrPC to the children in conflict with law as covered by the Juvenile Justice Act, 2015.
"…this Court is of the opinion that there is no expressed bar of application of Section 438 of the Code to the children in conflict with law covered by the Act, 2015 and in absence of expressed bar of application of Section 438 of the Code, there is no reason to imply such bar more particularly in the facts of the present case where the applicant who is juvenile is not even named as an accused and has raised a apprehension for being impleaded on extraneous consideration," it observed.
21. Does Right To Privacy Include Right To Drink Alcohol? Gujarat High Court Reserves Judgment On Maintainability Of Pleas Challenging Liquor Prohibition [Rajiv Piyush Patel v. State Of Gujarat]
A Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav reserved order on the maintainability of a batch of petitions challenging the prohibition on manufacture, sale and consumption of liquor in the state vide the Gujarat Prohibition Act, 1949, on grounds of 'manifest arbitrariness' and violation of 'right to privacy'.
The State had raised preliminary objections to the challenge. It stated that the High Court cannot sit in appeal over the Supreme Court's decision in State Of Bombay & Anr. v. FN Balsara where validity of Sections 12, 13 of the Act (prohibition on manufacture, sale and consumption of liquor) was upheld.
The Petitioners however contended that challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation. It was stated that question of validity of prohibiting consumption of alcohol was not decided by the Supreme Court and it is in this context that the Gujarat High Court is competent to adjudicate.
22. Indian Air Force Officer Receives Notice Over Refusal To Take COVID Vaccine: Gujarat High Court Grants Temporary Relief [Yogendra Kumar v. Indian Air Force]
A Division Bench of Justices AJ Desai and AP Thaker restrained Indian Air Force (IAF) from taking any coercive action against an Air Force Officer who refused to take COVID Vaccine and thus, he was served a show-cause notice by the IAF.
The order was passed on the plea of Air Force Officer, Yogendra Kumar (currently posted in Gujarat's Jamnagar) who has been served a show-cause notice seeking explanation as to why his service should not be terminated for his refusal to take the Covid-19 vaccine.
23. Community Members' Act Of Snatching Away Woman's Right To Marry Requires To Be Condemned: Gujarat High Court [Sureshbhai Hathibhai Khant v. State Of Gujarat]
A Single Bench of Justice Gita Gopi ruled that the act of community members in snatching away a woman's right to marry and entering into violence and causing harassment is required to be condemned. It observed thus while taking into account the fact that a major woman has a right to decide about her marriage and her future.
The Bench, therefore, dismissed two applications that prayed for quashing of the criminal proceedings against the accused, who happen to be the relatives of the girl and who allegedly harassed the family of the boy with whom the woman got married.
24. "Live Your Own Life As Per Your Own Wish": Gujarat High Court Reunites Inter-Caste Couple Who Were Earlier Forced To Divorce [Hitendrakumar Ranchhodji Thakore v. State of Gujarat]
The Gujarat High Court on Friday reunited an inter-caste couple who was forced into a divorce in the year 2017, within two weeks of marriage, as the family of the woman didn't approve of the relationship.
The bench of Justice R. M. Chhaya and Justice Nirzar Desai was hearing the habeas corpus plea of Hitendrakumar Ranchhodji Thakore, a doctor by profession who sought production of Rinkuben, 26 years old nurse.
The Court stayed an externment order passed by the Gujarat Government wherein a widow lady was externed for a period of six months from the District of Bharuch, over offences of bootlegging liquor. On the basis of the stakes involved in the matter, the Bench of Justice Paresh Upadhyay asked the State Government as to how State visualizes the lady to earn her livelihood, from being away from her home for six months.
In a significant decision, the Court directed a hospital in Vadodara to conduct an IVF/Assisted Reproductive Technology (ART) procedure for the collection of samples from the body of a critical COVID-19 patient after his wife expressed her desire to bear his child.
A petition to this effect was circulated during the course of the day upon mentioning at 2.30 p.m., and the Bench of Justice Ashutosh J. Shastri, in view of extraordinary circumstances of the condition of husband, permitted the petition to be circulated.
The Court questioned the Gujarat State Government for detaining people under Prevention of Anti-Social Activities (PASA) for possessing a few Remdesivir injections, while finding act of distribution of 5K injection political party to be in "accordance with the law". The Bench of Justice Paresh Upadhyay orally remarked that "Praja ne vadhare na daravo tame logo" (Don't scare the citizens).
28. "Cannot Claim Financial Aid As A Matter Of Right": Gujarat HC Dismisses Auto Rikshaw Drivers Union's Plea For Assistance Under State Atma Nirbhar Scheme [Jagrut Auto Rickshaw Drivers Union v. State Of Gujarat]
The Court has dismissed a petition moved by two Railway Stations Auto Rikshaw Drivers' Unions seeking financial assistance from the State Government under the Atma Nirbhav Gujarat Scheme after observing that the petitioners cannot claim financial assistance as a matter of right. Observing that all businesses and professions have badly been hit by the pandemic, Justice Bela M. Trivedi and Justice Bhargav D. Karia observed thus: "It cannot be gainsaid that the rigour of Covid Pandemic had affected the lives and livelihood of people world over and has caused great financial losses to every sector of the society."
29. "Want Daughters To Be Safe; From Where Does One Get Idea To Throw Acid?": Gujarat HC Refuses To Suspend Sentence [Jayeshkumar Budhabhai Zala v. State Of Gujarat]
The Court refused to suspend the sentence of a man convicted under Section 326A of the Indian Penal Court stressing that the Court wants daughters to be safe and further questioned that from where does one get the idea of throwing acid? The Bench of Justice Paresh Upadhyay was hearing the plea of a man who has been convicted for throwing acid on a 19-year-old girl, who had rejected the marriage proposal of the Convict.
30. "Public Interest Over Religion": Gujarat High Court Dismisses Plea To Allow Parsis To Perform Last Rites As Per Customary Practice [The Surat Parsi Panchayat Board v. Union Of India]
The Court observed that the guidelines issued by Ministry of Health and Family Welfare for dead body management are not violative of fundamental rights of the Parsis, the Court has dismissed a petition seeking directions to allow the Parsi Community to perform last rites of their members as per their customary practice i.e. "Dokhmenashini". The Court was dealing with a petition filed by Surat Parsi Panchayat Board through its Trustee seeking permission to a specific direction to declare that the impugned Guidelines do not prohibit the Parsis to perform the last rites of any of its member who died due to Covid 19 in accordance with their religion.
31. "Her Raising Voice To Interpret Constitution In Own Way Doesn't Amount To Sedition": Gujarat HC Grants Bail To 'Pathalgadi' Leader [Babita Sukar Kashyap v. State Of Gujarat]
The Court granted bail to Pathalgadi Movement leader Babita Kachhap (Kashyap) who was arrested by the Gujarat Anti Terrorist Squad (ATS) in July last year over her involvement in an alleged campaign to support the "Pathalgadi movement".
Justice S. H. Vora noted that the prosecution couldn't point out a single event to show that any disturbance had been caused or public in general was affected in their normal activities on account of Babita's involvement with the movement.
32. "Whether 'Gujarat Land Grabbing Act' Allowing Invoking Of 'PASA Act' Being Misused?": Gujarat HC Seeks State Govt. Response [Jagdishbhai Maheta v. State of Gujarat]
The Court questioned the State Government as to whether the amendment in the Gujarat Land Grabbing (Prohibition) Act, allowing the invoking of the Prevention of Anti-social Activities Act (PASA) is being misused by the Executive.
Justice Paresh Upadhyay noted in its order: "This Court finds that a wider issue has cropped up, as to whether the object sought to be achieved by the government, with the introduction of this amendment, is achieved or is being misused by the executive. On this point, the response from the state government and the Home department is requested."
The Court issued notice to the Gujarat State Government challenging the vires of the Gujarat Freedom of religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 noting that it is for the married couple to decide which Religion to follow (in case of inter-religious marriage).
34. "Whether You Take Care Of Citizens Like You Care For Cows?: Gujarat High Court Seeks DM's Reply [Aspak Hanifbhai Panja (Patni) Through Anis Hanifbhai Panja (Patni) v. State Of Gujarat]
The Court asked the District Magistrate, Gir-Somnath as to whether the care which is claimed to have been taken on behalf of the State for gauvansh, similar care is being taken for citizens in the area under his jurisdiction?
The Bench of Justice Paresh Upadhyay was hearing a plea challenging the detention order passed by DM under the Gujarat Prevention of Anti Social Activities Act, 1985 as he alleged tied up cattle in such a way that they could not drink water.
35. "System Laughing At Us": Gujarat HC Orders Release Of Rape Convict With Whom 'Victim' Willingly Married, Gave Birth To Children [Ashwinbhai @ Raj Ranchhodbhai Poyala Versus State Of Gujarat]
The Court ordered the release of a rape convict on bail by suspending his sentence while noting that the alleged victim admitted that she, on her own, married, started living with him, and even gave birth to his two children.
Commenting upon the conviction judgment and order passed against the man, the Bench of Justice Paresh Upadhyay orally observed in Gujarati thus: "Implementation of law with the complete non-application of mind…we have to think over such matters collectively. I can't find fault with the trial court because it was under obligation to implement the law, even the prosecution can't be blamed."
36. "No Disturbance To 'Public Order', How PASA Invoked In Gambling Cases?": Gujarat High Court Quashes Detention Order [Asheshbhai Indravadanbhai Dudhiya (Ganchi) v. State Of Gujarat]
Emphasizing that by no stretch of imagination can it be held that Gambling incidents could disturb public order, the High Court recently set aside judgment and order of the Single Judge and quashed the detention order passed on the basis of two cases registered against one Asheshbhai Dudhiya under the Gambling Act.
Essentially, the single judge of the High Court had earlier dismissed the writ petition challenging the order of preventive detention, and therefore, a Letters Patent Appeal had been preferred before the Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav.
While protecting inter-faith marriages by consenting adults from the rigours of the Gujarat Freedom of Religion(Amendment) Act 2021, the High Court prima facie observed that the law "interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India".
A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav observed that the provisions of the law, commonly known as the 'love jihad' law, put parties who have validly entered into inter-faith marriage "in great jeopardy"
38. PASA Sword Hanging Over Traders Can't Be Permitted To Continue, Citizens Can't Be Left In Lurch: Gujarat High Court [Amitkumar Rameshbhai Patel, Sanjay Prahladbhai Patel and Sanjaykumar v. State Of Gujarat & Ors.]
The Court observed that when the State on the whole and the economy, in particular, is trying to regain the momentum post COVID, the Court can't allow that the sword of PASA Act remains hanging over the traders in connection with GST matters.
The Bench of Justice Paresh Upadhyay was hearing the matter of the petitioners apprehending detention under PASA in connection with the Complaint filed by the State Tax Department in CJM's Court under different sub-sections of Section 132 of the Central & Gujarat GST Acts read with Section 120B of the IPC.
39. "Citizens' Freedom At Stake; Need To Educate Officers Where State's Territory Ends": Gujarat High Court Raps SDM For Exceeding Jurisdiction [Sagarbhai Sadashiv Bhamare v. State Of Gujarat]
The Court came down heavily on the State's authorities for encroaching upon the liberty of citizens by externing people from the Union territories (outside the Gujarat State's Jurisdiction), upon which they do not have any jurisdiction.
The Bench of Justice Paresh Upadhyay was hearing a challenge to the order passed by the Sub-Divisional Magistrate, Navsari, externing petitioner, one Sagar Bhamare, for a period of two years from several Districts of Gujarat and also from the Union Territories of Daman and Dadra Nagar Haveli.
40. No Need To Examine Scribe To Prove Execution of a Will: Gujarat High Court [Sonaji Badhala Chaudhari v Akha Diwala Chaudhari Through Heirs]
The Court has held that in view of the provisions of Section 68 of the Indian Evidence Act, 1872, there is no need to examine the scribe of a Will. What law requires is examination of at least one attesting witness, added the Court.
41. Solitary Offence Under Prohibition Act No Ground For Preventive Detention Under PASA : Gujarat High Court [Karansinh Chetansinh Vaghela v. the State of Gujarat]
The Court has held that just because a solitary offence has been registered against the appellant-detenu under the Gujarat Prohibition Act, that by itself does not have any bearing on the maintenance of public order.
Quashing the detention order under the Gujarat Prevention of Anti-Social Activities Act, a Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav remarked that the detaining authority has failed to substantiate the alleged anti-social activities of the appellant-detenu adversely affect or are likely to affect the maintenance of public order adversely.
42. "People Have Stopped Hiring Goons, File FIR, Invoke PASA & Get Land's Possession": Gujarat HC On Misuse Of Anti Land Grabbing Act [Ramjibhai Nathubhai Charola v. State Of Gujarat]
The Court deplored the misuse of recently enacted Gujarat Land Grabbing (Prohibition) Act, 2020 followed by the invocation of Gujarat Prevention of Antisocial Activities Act (PASA) in private property disputes.
"People have stopped hiring goons, file FIR, invoke PASA and get the possession of the land, I have dealt with many such cases. Even in cases where the land has been purchased through a registered sale deed, PASA has been invoked. This is your Land Grabbing Act," the Bench of Justice Paresh Upadhyay made these oral scathing remarks in Gujarati.
The Court quashed an externment order passed against a person, who was allegedly part of a crowd of unknown persons who were demonstrating against NRC/CAA, noting that citizens can't be subjected to externment for raising his grievance against the Government.
The Bench of Justice Paresh Upadhyay was hearing the plea of a social activist Mohammed Kaleem Siddiqui who had been externed for a period of one year from several districts of Gujarat (including Ahmedabad, Gandhinagar, Kheda and Mehsana) by the Assistant Commissioner of Police, Ahmedabad.
44. 'Unconstitutional, Absurd, Not In Public Interest': High Court Strikes Down Gujarat Cooperative Societies (Amendment) Act, 2019 [Pravinsinh Indrasinh Mahida v. State of Gujarat]
The Court struck down the Gujarat Cooperatives Societies (Amendment Act), 2019 by ruling that the legislation is 'unconstitutional, absurd, and manifestly arbitrary and not in the public interest'. The State vide the impugned legislation could abdicate its responsibility of conducting elections of cooperative sugar factories listed under Section 74C (1)(v) of the Act.
"If the Government wants to save money and administrative time, then it should consider doing away with Section 74C itself. Why save time and expense in respect of just the Sugar factories? How much expense and time goes in these 13 Sugar societies, as opposed to the remaining which continue to be within the purview of Section 74C?" the Court observed in its order.
The High Court refused to rectify its August 19 order staying Section 5 Of Gujarat Freedom Of Religion Act noting that "We don't find any reason to make any changes in the order ".
Appearing before the Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav, Advocate General Kamal Trivedi argued that Section 5 of the Act has nothing to do with marriage per see and therefore, the Court's August 19 order staying rigors of Section need rectification to the extent it mentions Section 5.
46. Liquor Prohibition Yet To Be Tested In Context Of Personal Food Preferences Within Right To Privacy: Gujarat High Court [Peter Jagdish Nazareth v. State of Gujarat(SCA 799/2019) and connected cases]
The High Court has observed that the law prohibiting the use and consumption of intoxicating liquor has never been put to judicial scrutiny before in context of "personal food preferences weaved within the right to privacy". Observing thus, it held as maintainable a batch of writ petitions challenging the prohibition on manufacture, sale and consumption of liquor in the state as per the Gujarat Prohibition Act, 1949
47. Depression Can Be Classified As 'Serious Illness' In COVID's Context: Gujarat High Court [Krishabh Kapoor v. Sardar Vallabhbhai National Institute of Technology, Surat]
Depression can be classified as a serious illness, especially in the context of the COVID, observed the Court as it set aside the order and decision of a government college to cancel the registration and admission of a student as he failed to appear for the examination due to depression and suicidal thoughts.
The Bench of Justice N. V. Anjaria observed thus: "Approach of sympathy is not the rule of law, yet the law has to be benevolent to sub-serve the interests of justice, wherever the facts and circumstances so justify and demand. This is one such case."
"The tendency of treating one of the judges as only for the purpose of completing quorum has been there for long," observed the Court as the Additional Public Prosecutor (APP) appearing in an appeal against acquittal failed to bring a second copy of the papers he was relying upon.
"What about my copy? If you have one copy, that would always be for my brother judge. Will you have two copies from the next time?" Justice Paresh Upadhyay orally asked him when the APP attempted to pass on documents.
49. Customary Divorce A Social Evil, Happens On Account Of The Attitude Of Ill-Minded Male Chauvinists: Gujarat High Court [Bhartiben v. Amitbhai Vitthalbhai Sojitra]
Underscoring that customary divorce is a social evil, the Court recently refused to grant a declaration regarding the dissolution of marriage on the basis of a customary divorce of a couple noting that the same was not adequately proved by the wife (who was in an appeal seeking such declaration).
The bench, however, clarified that the parties were at liberty to file an appropriate application under the relevant provision of the Hindu Marriage Act and pray for a decree of divorce with consent, and directed the court to take such application for hearing at the earliest.
The Court observed that Asiatic Lions are not only the pride of Gujarat but they are the pride of Asia and that prompt measures are expected from government to protect the Wild cat.
The Bench of Justice N. V. Anjaria and Justice A. P. Thaker was hearing Suo moto proceedings for the conservation of lions in and around the Gir sanctuary in the State of Gujarat which was originated in 2018 after a news report appeared which stated that around 184 lions had died in the previous two years.
The Court suspended the Life-imprisonment sentence of Ex-BJP MP Dinu Bogha Solanki who was convicted by a special CBI court in 2019 for killing RTI activist Amit Jethwa in 2010 after the activist had tried to expose illegal mining activities in the Gir forest region.
Suspending his sentence and granting him conditional bail, the Bench of Justice Paresh Upadhyay and Justice AC Joshi observed that the CBI court's judgment was based on 'assumptions and presumptions' and that the verdict was 'prima facie erroneous'.
52. "Non-Interference Would Reduce Lady Without Husband's Shelter": Gujarat HC Quashes Man's Conviction For Raping Minor Wife [Ashwinbhai @ Raj Ranchhodbhai Poyala v. State Of Gujarat]
Stressing that non-interference by the Court would reduce the lady and two children without shelter of husband/father and which wouldn't be in the interest of justice, the Gujarat High Court last week quashed the lower court's conviction order against a man for raping his minor wife.
In this case, the alleged victim (wife) had admitted that she, on her own, started living with the convict/appellant as his wife and she had even given birth to his two children. Importantly, neither she nor the convict/husband disowned the birth and paternity of their two children.
53. State Facilitating Battles Within A Religious Sect: Gujarat High Court Quashes Externment Order Passed Against Priests [Swami Satyaprakashdasji Guru Ghanshyamprasad Dasji & Anr v. State Of Gujarat & Ors.]
The Court rebuked the state government for facilitating battles within a religious sect as it quashed externment order passed against two religious priests of the Gadhada temple on account of an ongoing dispute within the Swaminarayan sect concerning temple trust elections.
Essentially, the Bench of Justice Paresh Upadhyay was hearing two pleas filed by the two priests of the Gadhada temple — Swami Satyaprakashdasji and Swami Ghanshyamvallabhdasji (petitioners) assailing the externment order passed against them by the Botad district authorities.
The Court partly allowed Former IPS officer Sanjiv Bhatt's plea seeking production of certain documents including A Summary report in relation to the trial in a 1996 case under Narcotics Drugs Psychotropic Substances Act (NDPS).
The documents which were not part of the chargesheet, but seized by the investigating agency during the investigation of the offence, cannot be withheld by the prosecution merely on the ground that the documents sought to be summoned are not part of the chargesheet, Justice Ilesh J. Vora observed.
Dealing with a plea filed by certain street vendors who claimed that they have been arbitrarily prohibited from selling non-vegetarian food on the streets of Ahmedabad, the Court rapped the Ahmedabad Municipal Corporation (AMC) and asked them not to throw away carts of such people to satisfy the ego of some. Hearing the matter, the Bench of Justice Biren Vaishnav earlier today sought the presence of the Counsel for AMC before the Court as it orally remarked thus:
"How can you decide what people should eat? Suddenly because someone in power thinks that this is what they want to do? Tomorrow you will decide what I should eat outside my house? Tomorrow they will tell me that I should not consume sugarcane juice because it might cause diabetes or that coffee is bad for my health."
Dealing with a plea filed by street vendors who have been prohibited from selling non-vegetarian food on the streets of Ahmedabad, the Gujarat High Court today rapped the Ahmedabad Municipal Corporation (AMC) and observed how could people be prevented from eating what they want to eat.
"You don't like non-veg food, it is your lookout. How can you decide what people should eat outside? How can you stop people from eating what they want?", asked the Bench of Justice Biren Vaishnav.
Taking note of the practice of filing long affidavits before the Court in contempt matters, the Gujarat High Court today directed the Government pleaders to restrict their affidavits to a maximum of three pages. The Bench of Chief Justice Aravind Kumar and Justice Ashutosh Shastri orally remarked thus: "This practice of filing affidavits in 8 pages, 12 pages should stop in contempt matter. This is not a court of appeal, why do you want to convert these cases into appeal cases. Supreme Court has come down heavily on the practice of traveling beyond what has been ordered."
The High Court rejected a Public Interest Litigation (PIL) plea challenging a circular issued by the Ahmedabad Municipal Corporation denying entry to/in certain public places to those who have not received both the doses of COVID Vaccine.
59. Gujarat HC To Consider If Exception To Marital Rape From Section 375 IPC Violates Wife's Fundamental Right To Sexual Autonomy [Jaideep Bhanushankar Verma vs Union of India]
The Court issued notice in a plea challenging the constitutionality of Exception 2 to Section 375 of the Indian Penal Code. Section 375 of the Indian Penal Code, 1860 (IPC) criminalises rape. However, Exception 2 thereto exempts a man who rapes his wife if she is not under fifteen years of age.
The Court issued a notice to the state government on a petition filed seeking quashing of a First Information Report (FIR) registered over the allegation against the applicants alleging that they are involved in a conspiracy to forcefully convert the religion of people. The Bench of Justice Ilesh J. Vora was hearing the FIR quashing plea filed by the petitioners Shabbir Bakerywala, Samaj Bakerywala, Hasan Tissli, and Ismail Achhodwala who have been named in the FIR but haven't been arrested as yet. However, five other people who are involved in the case and named in the FIR have been arrested.
