Gujarat High Court Monthly Digest: April 2022 [Citations 102-143]

Bahdurbhai Devarabhai Khavad Versus Dy. Executive Engineer,Surendranagar Jal Sinchan Sub Division & 1 Other(S) 2022 LiveLaw (Guj) 102

Shree Radhekrushna Ginning And Pressing Pvt. Ltd. Through Director Yash Pareshbhai Khachar Versus State Of Gujarat 2022 LiveLaw (Guj) 103

Symphony Limited Vs ACIT 2022 LiveLaw (Guj) 104

Nilubahen Gordhanbhai Machhi Versus State Of Gujarat 2022 LiveLaw (Guj) 105

Harkishanbhai Dahyabhai Lad vs State Of Gujarat 2022 LiveLaw (Guj) 106

Shri Shakti Cotton Pvt. Ltd. v. The Commercial Tax Officer 2022 LiveLaw (Guj) 107

Asrafkhan Dilavarkhan Lashari vs The State Of Gujarat 2022 LiveLaw (Guj) 108

Rajendra Amulakh Khimani Versus The University Grants Commission 2022 LiveLaw (Guj) 109

Somiben Arvindbhai Patel Versus State Of Gujarat 2022 LiveLaw (Guj) 110

M/S Bharmal Indane Service versus Indian Oil Corporation Limited 2022 LiveLaw (Guj) 111

Varyava Abdul Vahab Mahmood Versus State Of Gujarat 2022 LiveLaw (Guj) 112

Kameshbhai Niranjanbhai Sopariwala Versus State Of Gujarat 2022 LiveLaw (Guj) 113

State Of Gujarat Versus Paramjit @ Kali Himmatsingh Chima 2022 LiveLaw (Guj) 114

Kanjariya Khalid Ahmed vs State Of Gujarat 2022 LiveLaw (Guj) 115

Indian Hume Pipe Company Ltd Versus Gujarat Industrial Development Corporation & 1 other(s) 2022 LiveLaw (Guj) 116

Ishwarlal Kasturlal Pandya vs Ibrahimbhai Farukdin Vohra 2022 LiveLaw (Guj) 117

Sultana Jahangirbhai Mirza vs State Of Gujarat 2022 LiveLaw (Guj) 118

M/S M N Trapasia versus Divisional Railway Manager (WA) 2022 LiveLaw (Guj) 119

Botad Taluka Sahkari Kharid ... vs Bhagirathbhai Kanubhai Khachar 2022 LiveLaw (Guj) 120

Aryan Siris Garange (Arayan Shirish Garange) Versus State Of Gujarat 2022 LiveLaw (Guj) 121

Alok Kistuchand Agarwal vs Sub Registrar 2022 LiveLaw (Guj) 122

Arya Metacast Pvt. Ltd. Versus State of Gujarat 2022 LiveLaw (Guj) 123

M/s Wipro Ltd. Versus State of Gujarat 2022 LiveLaw (Guj) 124

Modern Syntex (I) Limited vs Assistant Commissioner Of CGST 2022 LiveLaw (Guj) 125

I-Tech Plast India Pvt. Ltd vs State Of Gujarat 2022 LiveLaw (Guj) 126

Richa W/O Kushal Mistry And D/O Hemantkumar Adhvaryu Versus State Of Gujarat 2022 LiveLaw (Guj) 127

Hiren Dahyabhai Rathod vs State Of Gujarat 2022 LiveLaw (Guj) 128

Aveshbhai @ Avalo Ganibhai Ghoniya Through Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate And Collector & 2 Other(S) 2022 LiveLaw (Guj) 129

Bhavinkumar Kantilal Gajera vs State Of Gujarat 2022 LiveLaw (Guj) 130

Maheshbhai Govindbhai Patel vs Mother Dairy Fruit And Vegetable Pvt Ltd 2022 LiveLaw (Guj) 131

Rameshbhai Dhulabhai Katara Versus State Of Gujarat 2022 LiveLaw (Guj) 132

Priteshkumar Bipinbhai Dave vs State Of Gujarat 2022 LiveLaw (Guj) 133

Sardar Patel Seva Trust Versus The Regional Provident Fund Commissioner II 2022 LiveLaw (Guj) 134

LH Of Late Harijan Shivabhai Bapubhai, Harijan Vinodbhai S/O Late Zaverbhai Shivabhai Harijan Versus State Of Gujarat 2022 LiveLaw (Guj) 135

Dharaben Dhansukhbhai Joshi Versus Gujarat Gaun Seva Pasandgi Mandal Through Secretary 2022 LiveLaw (Guj) 136

Amitbhai Harilal Ruparelia vs State Of Gujarat 2022 LiveLaw (Guj) 137

Time Cinemas and Entertainment Pvt Ltd versus Venus Infrastructure and Developers Pvt Ltd 2022 LiveLaw (Guj) 138

Raghabhai Ukabhai Parmar Versus State Of Gujarat 2022 LiveLaw (Guj) 139

Shah Rukh Khan S/O. Meer Taj Mohammed v. State Of Gujarat 1 other 2022 LiveLaw (Guj) 140

Kamlesh @ Rinku Mohanlal Upadhyay Versus State Of Gujarat 2022 LiveLaw (Guj) 141

Ashvinkumar Ramniklal Jani Versus State Of Gujarat 2022 LiveLaw (Guj) 142

Bhupatbhai Pujabhai Bhoi Versus Hiraben Wo Somaji Bhoi & 2 Other(S) 2022 LiveLaw (Guj) 143

Judgments/Orders of the Month

Gujarat High Court Rejects Application Seeking Benefits And Interests On The Ground Of Delay Under Contempt Of Courts Act

Case Title: Bahdurbhai Devarabhai Khavad Versus Dy. Executive Engineer,Surendranagar Jal Sinchan Sub Division & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 102

Averring that there was no delay in making payment of pensionary benefits as alleged by the Appellants, the Gujarat High Court has refused to interfere in the Letters Patent Appeal seeking Respondent authorities to pay all the consequential pensionary benefits and 18% interest on delayed payment.

The Appellant herein had his services terminated against which he and other persons had filed a reference which was allowed. Accordingly, the Appellant was held to be entitled to similar benefits as another similarly placed daily wager. The Appellant had also approached the Court by way of Section 12 of Contempt of Courts Act wherein the Division Bench had observed:

"In that view of the matter, it cannot be said that the respondents have not fully complied with the directions issued by this Court. As much as pensionary benefits are extended and received by the applicant, during the pendency of this application, we are of the view that it is not a fit case to be proceeded further under the provisions of the Contempt of Courts Act, 1971."

Distinction Between "Attachment Of Property" And "Charge Over Property": Gujarat High Court Explains

Case Title: Shree Radhekrushna Ginning And Pressing Pvt. Ltd. Through Director Yash Pareshbhai Khachar Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 103

"Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations; it does not confer any title on the attaching creditors", the Gujarat High Court affirmed in a judgment.

Justice JB Pardiwala was hearing a writ application under Art 226 wherein the Applicant had prayed for the issuance of a writ of mandamus for the quashment of the order by Respondent No. 2 and thereby release the charge on the property of the Applicant

No Show Cause Notice Issued Along With Draft Assessment Order: Gujarat High Court Quashes Section 144B Order

Case Title: Symphony Limited Vs ACIT

Citation: 2022 LiveLaw (Guj) 104

The bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the issuance of a show cause notice along with the draft assessment order is absolutely necessary before passing an order under Section 144B of the Income Tax Act.

The writ petitioner/assessee filed its return of income for the A.Y. 2018-19 at Rs. 197,12,28,420. Later, the return was revised at Rs. 197,12,28,420. The case of the assessee was selected for scrutiny under the CASS to verify a few issues.

Appointment Not An Indefeasible Right But State Can't Be Arbitrary: Gujarat High Court Imposes ₹50,000 Cost

Case Title: Nilubahen Gordhanbhai Machhi Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 105

The Gujarat High Court has recently held that merely on account of the name of a candidate figuring in the select list, the candidate would not acquire any indefeasible right for being appointed. However, this is not a completely unqualified proposition. The State cannot act in an arbitrary manner and the decision not to fill up vacancies has to be taken bona fide for appropriate reasons.

It thereby reaffirmed the law laid down in Shankarsan Dash Vs. Union of India, (1991) 3 SCC 47 wherein it was held:

"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post.... However, it does not mean that the State has the licence of acting in an arbitrary manner."

Service Before Regularization Where Workman Completed 240 Days Continuous Service U/S 25B Industrial Disputes Act Qualifies For Pension: Gujarat HC

Case Title: Harkishanbhai Dahyabhai Lad vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 106

The Gujarat High Court has held that past services of the daily-wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.

Justice Biren Vaishnav, heavily relying on the case of Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi, held,

"for counting the period for purposes of pension, the date of initial appointment needs to be taken into consideration and for the purposes of taking initial date of appointment those years in which the petitioners have completed 240 days have to be counted for the purposes of pension."

Section 44 Of GVAT Act Akin To Garnishee Order; Requires Debtor-Creditor Relationship: Gujarat High Court

Case Title: Shri Shakti Cotton Pvt. Ltd. v. The Commercial Tax Officer

Citation: 2022 LiveLaw (Guj) 107

"It can be said that in interpreting a taxing statute, the equitable considerations are entirely out of place. The reasons of morality and fairness can have no application to bring a citizen who is not within the four corners of the taxing statute within its fold so as to make him liable to payment of tax," Justice JB Pardiwala of the Gujarat High Court has opined.

The Bench was hearing a writ application under Art 226 wherein the Applicants had prayed for the quashment of the impugned notice issued under the Value Added Tax, 2003 for the payment of outstanding sum of INR 1,68,02,573 and attachment of the personal properties of the director and the brother of director. They also sought a stay on the notice until the disposal of the petition.

'No Recovery At His Behest': Gujarat High Court Grants Anticipatory Bail To Alleged Supplier Of Prohibited Animals

Case Title: Asrafkhan Dilavarkhan Lashari vs The State Of Gujarat

Citation: 2022 LiveLaw (Guj) 108

The Gujarat High Court has recently granted anticipatory bail to an Applicant-accused, alleged to be supplier of prohibited animals.

The Applicant was booked for alleged commission of offences under Sections 11(1)(d), 11(1)(e), 11(1)(f) and 11(1)(h) of the Prevention of Cruelty to Animal Act 1960 and Sections 6(a), 4, 3 and 8(2) of Gujarat Animals Preservation Act and Section 114 of IPC as well as Section 119 of the Gujarat Police Act. The provisions pertain to animal cruelty, transportation of animals in a manner so as to subject it to unnecessary pain or suffering.

Gujarat High Court Stays Removal Of Vice-Chancellor Of Gujarat Vidyapith University

Case Title: Rajendra Amulakh Khimani Versus The University Grants Commission

Citation : 2022 LiveLaw (Guj) 109

The Gujarat High Court has stayed the removal of the Vice-Chancellor of the Gujarat Vidyapith (Deemed to be University) Ahmedabad pursuant to the decision taken by the University Grants Commission in November 2021 directing the Chancellor to remove the Petitioner-Vice Chancellor.

The Petitioner approached the High Court challenging the decision of the UGC and claimed that the removal was in breach of Regulation 10.12.2.E of the UGC (Institutions Deemed To Be Universities) Regulations, 2019.

Business Of Selling Fruits In Small Sheds Not Large Scale Commercial Activity, Govt Land Can Be Allotted Without Public Auction: Gujarat High Court

Case Title: Somiben Arvindbhai Patel Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 110

The Gujarat High Court has recently come to the rescue of small vegetable sellers by setting aside the notice of the Collector, asking them to vacate a government land for construction of a Police station.

The Court rejected the ground stated by the Collector that petitioners request for allotment of land cannot be acceded without public auction, because they are carrying on commercial purpose. It observed,

"petitioners are doing small business like that of selling of vegetables / fruits, etc. by keeping small sheds and lorries. Therefore, if that activities are considered, it cannot be termed as large scale commercial activities and, therefore, if the vocation of the petitioners are considered then it is of small retail business then the other government lands can be considered for allotment of appropriate portion of land, available in the vicinity to the petitioners."

Dispute Involving Interpretation Of Policy Guidelines Can Also Be Referred To Arbitrator: Gujarat High Court

Case Title: M/S Bharmal Indane Service versus Indian Oil Corporation Limited

Citation: 2022 LiveLaw (Guj) 111

The Gujarat High Court has ruled that petition for referring the matter to arbitration cannot be disallowed on the ground that the dispute involves interpretation of policy guidelines.

The Single Bench of Chief Justice Aravind Kumar held that whether there is an arbitrable dispute or not and whether the Arbitral Tribunal has jurisdiction to decide the dispute is an issue which can be decided by the arbitrator himself under Section 16 of the Arbitration and Conciliation Act, 1996.

Gujarat High Court Declines Anticipatory Bail To Man Accused Of Forcefully Converting Religion Of 100 Hindus

Case Title: Varyava Abdul Vahab Mahmood Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 112

The Gujarat High Court has rejected anticipatory bail to a man accused of forcefully converting religion of 37 Hindu families and 100 Hindus. It was also alleged that the Applicant lured them by offering financial assistance and converted a house constructed with Government funds to a place of worship — Ibadatgaah.

"Prima facie from the record produced by the prosecution, it appears that the present appellant has attempted to convert directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent means nor any person abet such conversion. Considering the material placed on record before this Court as well as reasons as discussed above, this Court is not inclined to accept the prayer to release the appellant on anticipatory bail, as prayed for," Justice BN Karia said.

Petitions Filed Directly In HC For Registration Of FIR Without Availing Remedy U/S 156(3) CrPC In Conflict With SC Directions: Gujarat High Court

Case Title: Kameshbhai Niranjanbhai Sopariwala Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 113

The Gujarat High Court recently refused to exercise its writ jurisdiction under Article 226 of the Constitution and issue directions for registration of FIR on a complaint lodged by the Petitioner, observing that if such petitions are entertained then the High Courts will be flooded and will not be able to do any other work.

Justice AS Supehia refused to quash the closure report by the Respondent authorities and opined that the Petitioner had the remedy to approach the concerned Magistrate under Section 156(3) of CrPC and therefore, the High Court was not required to interfere with the petition. It was noted that the Apex Court had expressed concerns with regard to the filing of such applications directly before the High Court which increases the burden of the courts.

"It is noticed by this Court that various applications seeking registration of FIR are being filed before this Court directly without approaching the concerned Magistrate under Section 156(3) of the Cr.P.C. Such applications, which are directly filed are in direct conflict with the observations of the Apex Court."

Mandatory To Reveal Reasons For Arrest To Accused U/S 52 Of NDPS Act: Gujarat High Court Refuses To Quash Order Of Acquittal

Case Title: State Of Gujarat Versus Paramjit @ Kali Himmatsingh Chima

Citation: 2022 LiveLaw (Guj) 114

Emphasising that procedure under Section 50 of the NDPS Act needs to be followed in a just and proper manner, the Gujarat High Court has upheld the order of the trial court in acquitting the Respondent accused of offences under Sections 8(C), 20(B), 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act.

The facts of the case were that brown sugar packaged in a plastic bag was retrieved from the Respondent, herein. After the filing of complaint and chargesheet, the witnesses were examined however certain panchas and witnesses turned hostile and supported the case of the prosecution. Subsequently, the trial court after perusing the evidence on record acquitted the accused.

Seized Property May Be Returned If Vulnerable To Decay: Gujarat High Court

Case Title: Kanjariya Khalid Ahmed vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 115

The Gujarat High Court has recently granted the petition seeking the quashment of order seizing the vehicles of the Petitioner under the Gujarat Mineral (Prevention of Illegal Mining, Transport and Storage) Rules, 2017 and under Sections 4(1)A, 21(1), 21(4) and 21(4A) of the Mines and Mineral (Regulation and Development) Act, 1957. An FIR was also registered against the Petitioner for offences under Sections 379, 114 and 120B of IPC.

It was contested that the vehicles were the only means of livelihood for the Petitioner and if they were kept in further seizure, their condition will deteriorate since the trial will take time to conclude. Per contra, the Appellants submitted that the Petitioner was involved in illegal mining and therefore, the petition ought to have been rejected.

'Sufficient Cause' Paramount Consideration For Delay Condonation, Can't Be Imbibed With Laxity & Mala Fides: Gujarat High Court

Case Title: Indian Hume Pipe Company Ltd Versus Gujarat Industrial Development Corporation & 1 other(s)

Citation: 2022 LiveLaw (Guj) 116

The High Court reiterated that sufficient cause is the paramount consideration while dealing with application for delay condonation and if sufficient cause is shown, the Court should generally condone the delay.

The Bench comprising Justice AC Joshi however added,

"If the sufficient cause is imbibed with the laxity and mala fides on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay."

Gujarat High Court Increases Motor Accident Compensation; Includes Loss of Amenities, Functional Disability In Computation

Case Title: Ishwarlal Kasturlal Pandya vs Ibrahimbhai Farukdin Vohra

Citation: 2022 LiveLaw (Guj) 117

The High Court enhanced the compensation granted by the Motor Vehicles Tribunal to the Applicant, working in an agricultural land, computing his "functional disability" to be 100%, after he sustained fracture injuries on both the legs, on head and right hand on being dashed by a Truck while riding his scooter.

The Bench comprising Justice Sandeep Bhatt observed that the Tribunal had awarded compensation towards future loss of income. However, considering Applicant's 100% functional disability in terms of the Supreme Court decision in v. Ram Avtar Tomar, the amount of compensation is required to be enhanced.

Gujarat High Court Orders Protection For Inter-Faith Couple, Reiterates SC Guidelines For Preventive & Remedial Action

Case Title: Sultana Jahangirbhai Mirza vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 118

The High Court yet again came to the rescue of an inter-faith couple, by directing the State Police to protect the couple from their families who are opposed to their relationship.

The Bench comprising Justice Sonia Gokani and Justice Mauna M. Bhatt ordered that initially, the protection be provided for four months. Whichever place they attempt to settle, the SP/ACP of the concerned Zone shall look into the matter. Thereafter, if the couple continues to be at Ahmedabad, Commissioner of Police, Ahmedabad City shall take a call after four months whether to continue such protection or not.

There Cannot Be A Deemed Waiver Of Section 12(5) Of The A&C Act By Issuing A Letter To The Opposite Party: Gujarat High Court

Case Title: M/S M N Trapasia versus Divisional Railway Manager (WA)

Citation: 2022 LiveLaw (Guj) 119

The High Court ruled that unless the embargo placed under Section 12(5) of the Arbitration and Conciliation Act, 1996 (A&C Act) is waived by the parties, the provisions of Section 12(5) would continue to be attracted.

The Single Bench of Chief Justice Aravind Kumar held that there cannot be a deemed waiver of Section 12(5) by merely issuing a letter or communication calling upon the opposite party to waive the embargo.

Oral Termination Of Workman Violates S.25F Of Industrial Disputes Act: Gujarat High Court Orders Lumpsum Compensation

Case Title: Botad Taluka Sahkari Kharid ... vs Bhagirathbhai Kanubhai Khachar

Citation: 2022 LiveLaw (Guj) 120

The High Court has recently granted relief to a workman who was terminated from his services via an oral communication, in violation of mandatory provisions pertaining to retrenchment under Sections 25F and 25G of the Industrial Disputes Act, 1947.

Justice Vipul Pancholi ordered that the aggrieved workman be paid Rs.2,50,000/- towards lump-sum compensation to Respondent No.1-Workman, in lieu of reinstatement with continuity of service and 20% back-wages.

"The First Step Of Turning Him Into A Hardcore Criminal Will Be Sending Him Behind Bars": Gujarat HC Grants Bail To Applicant Accused Under POCSO Act

Case Title: Aryan Siris Garange (Arayan Shirish Garange) Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 121

The Bench comprising Justice AS Supehia has recently granted bail to the Applicant accused of offences under Sections 363, 366, 376(2)(n), 376(3) of the IPC and Sections 4,6 and 12 of the POCSO Act. Justice AS Supehia observed:

"The first step of turning him into a hardcore criminal will be sending him behind bars. The moment he is allowed to go behind bars, the efforts to make him a good and law abiding citizen will get dented. The applicant is a young student studying in First Year college and it is expected from him to observe and follow the fundamental duties of a good citizen as enshrined in Article 51-A of the Constitution of India."

Dues Of Secured Creditor Have Preference Over Crown DebtsUnless Otherwise Provided By Statute: Gujarat High Court

Case Title: Alok Kistuchand Agarwal vs Sub Registrar

Citation: 2022 LiveLaw (Guj) 122

"Once any immovable property is mortgaged / hypothecated towards secured creditors then having regard to the provisions contained in Section 2(zc) to (zf) of the SARFAESI Act, 2002 read with the provisions contained in Section 13 of the SARFAESI Act, 2002, the secured creditor will have the first charge on the secured assets", the High Court has affirmed recently.

The Bench comprising Justice JB Pardiwala and Justice Nisha Thakore was hearing a writ petition filed by a secured creditor, aggrieved by a letter issued by the Sub-registrar, imposing charges and encumbrances over the secured assets.

Provisional Attachment Not To Hamper Normal Business Activities: Gujarat High court Quashes Attachment Order

Case Title: Arya Metacast Pvt. Ltd. Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 123

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the provisional attachment should not hamper normal business activities of the taxable person.

The writ petitioner/assessee is in the business of manufacturing and selling ingots, having a factory situated near Rajkot, Gujarat State. The assessee is duly registered under the GST Act.

The assessee claimed to have regularly paid output tax for three financial years. The assessee entered into business transactions only with genuine dealers who were registered taxable persons under the GST Act. In support, the assessee has placed on record, regularly maintained records of the purchase transactions, which include invoices, e-way bills, weighment slips, photographs of material being unloaded, material received inspection report etc.

Gujarat High Court Condemns Coercive Steps Taken By Dept. For Recovery Of Dues From Wipro While Appeal Was Pending

Case Title: M/s Wipro Ltd. Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 124

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has condemned the coercive steps of the department for recovery of dues from Wipro when the appeal was pending before the first appellate authority as well as the Tribunal.

The writ petitioner, Wipro Ltd. is in the business of information technology services, including the sale of hardware and software, the sale of consumer products, and the supply and installation of solar power generation plants. The writ petitioner was registered under the VAT Act and the Central Sales Tax Act, 1956 for the relevant period.

Gujarat High Court Directs Assistant Commissioner Of CGST To Finalise Assessment Proceedings Within 2 Months On Account Of Severe Delay

Case Title: Modern Syntex (I) Limited vs Assistant Commissioner Of CGST

Citation: 2022 LiveLaw (Guj) 125

The High Court has recently issued a writ directing the Assistant Commissioner of CGST and Central Excise to initiate and complete the final assessment proceedings concerning the Applicant company and further release the Bank Guarantees in favour of the Applicant within two months. The Applicant company had also showed monetary losses worth INR 96,87,616 due to the bank guarantee charges and claimed compensation for the same in its writ application.

If The Authorities Acknowledge The Error And Accepts Repayment Of Erroneous Refund, It Is Logical To Restore The ITC In The Electronic Tax Ledger : Gujarat High Court

Case Title: I-Tech Plast India Pvt. Ltd vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 126

The High Court has directed the revenue to re-credit/restore the Input Tax Credit (ITC) to the tune of INR 1,39,49,810 in the electronic tax ledger of the writ petitioner . The Bench comprising Justice JB Pardiwala and Justice Nisha Thakore was hearing a writ petition which sought from the Respondent-authorities to re-credit the ITC of INR 139,49,810 in the electronic credit ledger along with interest.

Couple Held Two Marriage Ceremonies, Saptapadi Performed In Latter: Gujarat High Court Orders Registrar To Consider Application For Change In Date

Case Title: Richa W/O Kushal Mistry And D/O Hemantkumar Adhvaryu Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 127

The High Court has allowed a writ seeking a direction upon the Registrar of Marriages to consider the petitioners' application for issuance of a fresh marriage certificate, mentioning the date on which a pompous wedding was held with 'saptapadi', rather than a former date on which the couple had exchanged varmala in presence of a small gathering.

Due to pandemic of COVID-19 and the restrictions imposed by the Government on public gathering, the writ applicants entered into marriage with a very small number of relatives attending the marriage. The marriage invitation was not prepared and the couple only performed the ceremonies of exchanging garlands, tying mangalsutra and applying sindhoor. However, the ceremony of "datta homa" and "Saptapadi" (i.e. taking seven steps around the sacred fire) were not performed.

'Stigmatic': Gujarat High Court Directs Reinstatement Of Employee Terminated Without Inquiry Following Allegations Of Corruption

Case Title: Hiren Dahyabhai Rathod vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 128

The High Court quashed and set aside the order of termination issued against the Petitioner, sans any inquiry, merely on the basis of a FIR registered against him under the Prevention of Corruption Act.

It directed that the Petitioner be reinstated however, it refused to grant back-wages considering the principle of no work, no pay, as also applied by a Division Bench in similar facts in State of Gujarat vs Chetan Jayantilal Rajgor.

When Legality Of A Preventive Detention Order Is In Question, Courts Must Determine If The Ordinary Law Can Deal With The Offence: Gujarat HC

Case Title: Aveshbhai @ Avalo Ganibhai Ghoniya Through Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate And Collector & 2 Other(S)

Citation: 2022 LiveLaw (Guj) 129

"Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal", the High Court affirmed.

The Bench comprising Justice Nirzar S Desai was hearing a petition against the order of detention passed by the Respondent authority under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985. The Petitioner herein was detained and categorised as a 'dangerous persons' as defined under Section 2(c) of the Act.

Illegal Mining | Seized Vehicle Must Be Released Without Bank Guarantee If FIR Not Registered Within Time Stipulated Under 2017 Rules: Gujarat HC

Case Title: Bhavinkumar Kantilal Gajera vs State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 130

The Gujarat High Court has recently explained in the context of the Gujarat Mineral Rules, 2017 that if the complaint is not registered as envisaged under Rule 12(ii) of the Rules of 2017, the competent authority will have to release the seized vehicle without insisting for any bank guarantee.

The Bench comprising Justice Vaibhavi Nanavati was hearing a writ petition under Article 226 of the Constitution, seeking the quashment of the impugned order which seized the vehicle of the Petitioner.

S.17B ID Act | Employer Liable To Pay Wages To Workman During Pendency Of Appeal Against Labour Court's Order Of Reinstatement: Gujarat High Court

Case Title: Maheshbhai Govindbhai Patel vs Mother Dairy Fruit And Vegetable Pvt Ltd

Case Citation: 2022 LiveLaw (Guj) 131

The Gujarat High Court has reiterated that when a Labour Court directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court, the employer is be liable to pay such workman during the period of pendency of such proceedings in the High Court.

Referring to Section 17B of the Industrial Disputes Act, the Bench comprising Justice RM Chhaya and Justice Hemant Prachchhak observed,

"Section 17B of the Act clearly provides that when the Labour Court directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court, the employer shall be liable to pay such workman "during the period of pendency of such proceedings in the High Court full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period."

Seized Vehicle Should Be Handled Within 6 Months From Date Of Production Of Vehicle Before Court; Should Not Be Kept In Police Stations For Long: Gujarat HC

Case Title: Rameshbhai Dhulabhai Katara Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 132

The Gujarat High Court while making note of the Apex Court's decision in SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT has affirmed that within a period of six months from the date of production of vehicle before the Court, the seized vehicle should be disposed of appropriately and not be kept at police stations for a long time. Further, if the vehicle is not claimed by the Accused, then the insurance company or third person can auction it under the direction of the Court.

The Bench comprising Justice Ilesh J Vora made these observations while hearing a petition invoking the extraordinary jurisdiction of the High Court under Art 226 and the supervisory jurisdiction under Art 227 along with the inherent powers of the Court under Section 482 of CrPC for the release of the Muddamal Vehicle.

Post Fell Vacant Before Expiry Of Wait List, Applicant Can't Suffer Due To Lapse Of Administration: Gujarat High Court Grants Relief To PWD Candidate

Case Title: Priteshkumar Bipinbhai Dave vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 133

The Gujarat High Court has directed its administrative department to grant appointment to the Petitioner, a physically challenged candidate, who had applied for the post of Peon (Class IV) under the Physically Handicapped category.

The Bench comprising Justice Biren Vaishnav considered that two vacancies had arisen before the expiry of the waitlist in which Petitioner's name figured at serial number 67, however, the appointment could not be made since the Recruitment Cell was not informed about the same in due time.

Gujarat High Court Restrains Recovery Under Employee's Provident Fund Act Citing Non-Availability Of Industrial Tribunal To Hear Appeals

Case Title: Sardar Patel Seva Trust Versus The Regional Provident Fund Commissioner II

Citation: 2022 LiveLaw (Guj) 134

The Gujarat High Court has restrained the Regional Provident Fund Commissioner from initiating recovery proceedings against an employer under Section 8(B) and 8(G) of the Employee's Provident Fund and Miscellaneous Act, 1952, citing non availability of the Central Government Industrial Tribunal, Ahmedabad.

The Bench comprising Justice Biren Vaishnav stated that in the absence of a Presiding Officer at the Tribunal, the appeal filed by the employer against recovery order could not be heard.

Gujarat High Court Directs NHAI To Re-Compute Compensation For Agricultural Land Acquired In 2014 For Vadodara-Mumbai Expressway

Case Title: LH Of Late Harijan Shivabhai Bapubhai, Harijan Vinodbhai S/O Late Zaverbhai Shivabhai Harijan Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 135

The Gujarat High Court allowed the writ petition of a land-owner, seeking directions to re-compute the award passed by the competent authority in pursuance of land acquisition proceedings for the purpose of construction of Vadodara-Mumbai Expressway.

The Petitioners sought that the compensation be revised by applying the market value of the land with Multiplier Factor-2 since the land was a 'rural area'. All other statutory benefits under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 including solatium under Section 30(1) and interest under Section 30(3) of the Act.

'Reasonableness Tempered With Mercy': Gujarat HC Removes Ban On Woman From Appearing In Any Competitive Exam For 3 Yrs For Alleged Unfair Means

Case Title: Dharaben Dhansukhbhai Joshi Versus Gujarat Gaun Seva Pasandgi Mandal Through Secretary

Citation: 2022 LiveLaw (Guj) 136

In huge relief to a 29-year old woman bearing the responsibility of her ailing mother while simultaneously trying to build her career, the Gujarat High Court has removed the ban imposed on her by the State Subordinate Services Selection Board, precluding her from appearing in any competitive exam for three years. The coercive measure was taken against the woman after she was found carrying a mobile phone in one of the exams conducted by the Board.

"…was this single act of carrying a mobile phone so reprehensible that she needs to be debarred for a period of three years is the question", the Bench comprising Justice Biren Vaishnav wondered.

The Court was dealing with an Article 226 petition moved by the woman, stating that she did not resort to any unfair means and the carried the mobile inside the exam hall very inadvertently.

Intention U/S 415 IPC Is Key; Requires Thorough Investigation: Gujarat HC Refuses To Quash FIR For Offences Of Cheating, Misappropriation

Case Title: Amitbhai Harilal Ruparelia vs State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 137

The High Court has refused to interfere in an application praying for the quashing of the criminal complaints for offences under Sections 406, 420, 114 and 120B of IPC wherein the Complainant had alleged that the Accused had not made payments for purchasing grey cloth worth "lacs of rupees".

It was alleged that the Accused had promised the Complainant that they would be making payment of goods within one month of the cloth being sold and on the basis of such promise, the large value of the cloth was sold. The Accused had sold cloth to other persons, misappropriated the amount, cheated the Complainant and committed a breach of trust, it was alleged. Accordingly, an FIR was filed with the Katadargam Police Station.

Second Section 9 Application, Relief Can't Be Granted As It Would Amount To Main Relief In Arbitration :Gujarat High Court

Case Title: Time Cinemas and Entertainment Pvt Ltd versus Venus Infrastructure and Developers Pvt Ltd

Case Citation: 2022 LiveLaw (Guj) 138

The High Court has ruled that once an application under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) seeking interim measures has been disposed of, a subsequent similar application seeking similar reliefs, which were already dealt with in the earlier proceedings, is not maintainable.

The Bench, consisting of Justices N.V. Anjaria and Samir J. Dave, held that principal relief cannot be granted at the interim stage, and granting interim directions which are in the nature of main relief is not permissible in law.

Married Man Lures Young Girl To Elope: Gujarat High Court Directs Him To Reimburse 50% Expenses Incurred By Police In Tracing Them

Case Title: Raghabhai Ukabhai Parmar Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 139

The Gujarat High Court recently asked a man to reimburse 50% expenses incurred by the Police department in tracing a girl he had lured to elope, despite being married himself.

The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt observed,

"We need to particularly record that here is a case where the respondent no.4 knowing fully well his own marital status, has lured the girl and his repeated actions of such nature has not only made it extremely difficult for the parties but, because of that, the Police had to work for long many hours and after about 7 months, the corpus could be traced."

Raees Promotion Stampede | Gujarat High Court Quashes Criminal Case Against Actor Shah Rukh Khan

Case title - Shah Rukh Khan S/O. Meer Taj Mohammed v. State Of Gujarat 1 other

Case Citation: 2022 LiveLaw (Guj) 140

The High Court quashed a case against actor Actor Shah Rukh Khan registered against him in connection with a stampede that happened at Vadodara Railway Station during his film, Raees' promotions in the year 2017.

The Bench of Justice Nikhil S. Kariel observed that the act on part of Khan could not be termed to be so grossly negligent or reckless, neither could be an act on part of the petitioner be treated as the proximate and efficient cause of the unruly incidents at the Railway Station

Criminal Proceedings Of Private Nature Can Be Quashed U/S 482 Even If Trial Has Concluded In Conviction: Gujarat High Court

Case Title: Kamlesh @ Rinku Mohanlal Upadhyay Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 141

The High Court quashed an FIR and the order of conviction passed in a matrimonial dispute, observing that the offences involved were of non-serious and private nature.

The Bench comprising Justice Ilesh Vora quashed the FIR registered under Sections 498(a), 323, 294(b), 506(1) and 114 of the Indian Penal Code read with Section 3 and 7 of Dowry Prohibition Act 1961 and set aside the order of conviction passed by Additional Chief Metropolitan Magistrate, Ahmedabad.

"In light of the settled principle of law, it appears that the criminal proceedings involving non-heinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction," it observed.

Interest On Delayed Payment Of Gratuity Mandatory, Not Discretionary: Gujarat High Court Reiterates

Case Title: Ashvinkumar Ramniklal Jani Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 142

The High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity.

In light of the above, the Bench of Justice Biren Vaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity of the Petitioner, a retired reader, along with interest at 9% for wrongfully withholding the gratuity since his retirement in 2013.

Bar On Cognizance U/S 195(1)(b)(ii) CrPC Not Attracted When Forgery Took Place Outside Court, Before Producing Document As Evidence: Gujarat HC

Case Title: Bhupatbhai Pujabhai Bhoi Versus Hiraben Wo Somaji Bhoi & 2 Other(S)

Case Citation: 2022 LiveLaw (Guj) 143

The High Court has held that the bar of Section 195(1)(b)(ii) of Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in 'custodia legis'.

Section 195(1)(b)(ii) provides that no Court shall take cognizance of offences of Forgery, etc. when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court.