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Gujarat High Court Monthly Digest: July 2022 [Citations 253 - 300]

Sparsh Upadhyay
6 Aug 2022 8:16 AM GMT
Gujarat High Court Monthly Digest: July 2022 [Citations 253 - 300]
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NOMINAL INDEX Narubhai Amarsinh Makwana(Koli Patel) V/S State Of Gujarat 2022 LiveLaw (Guj) 253 Chief Officer v/s Decd. Shree Solanki Kanubhai Danabhai through Legal Heirs Manjulaben w/o Kanubhai Solanki 2022 LiveLaw (Guj) 254 Rafik Adam Sumra V/S State Of Gujarat 2022 LiveLaw (Guj) 255 Gujarat State Financial Corporation Ltd V/S India Sme Assets Reconstruction Company...

NOMINAL INDEX

Narubhai Amarsinh Makwana(Koli Patel) V/S State Of Gujarat 2022 LiveLaw (Guj) 253

Chief Officer v/s Decd. Shree Solanki Kanubhai Danabhai through Legal Heirs Manjulaben w/o Kanubhai Solanki 2022 LiveLaw (Guj) 254

Rafik Adam Sumra V/S State Of Gujarat 2022 LiveLaw (Guj) 255

Gujarat State Financial Corporation Ltd V/S India Sme Assets Reconstruction Company Limited & 8 Other(S) 2022 LiveLaw (Guj) 256

Jayesh Nebhabhai Kambariya V/S State Of Gujarat 2022 LiveLaw (Guj) 257

Sanjay Kanakmal Agarwal V/S The State Of Gujarat 2022 LiveLaw (Guj) 258

Nasik Merchants' Co-Operative Bank Ltd. V/s State Of Gujarat & 1 other(s) 2022 LiveLaw (Guj) 259

Narughar Songhar Goswami V/S State Of Gujarat 2022 LiveLaw (Guj) 260

Western Dedicated Freight Corridor Corporation Of India V/S Original Claimants & 3 other(s) 2022 LiveLaw (Guj) 261

Garden Silk Mills Limited & 1 Other(S) V/S Liquidator Of Petrofils Cooperative Limited & 1 Other(S) 2022 LiveLaw (Guj) 262

Solanki Haribhai Arjanbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 263

Dhanrajsinh Gambhirsinh Thakore V/S State Of Gujarat 2022 LiveLaw (Guj) 264

Narendrasinh Dosabhai Gohil V/S Managing Director & 2 Other(S) 2022 LiveLaw (Guj) 265

State Of Gujarat V/S Hasmukhbhai @ Harshadbhai Dahyabhai Makwana 2022 LiveLaw (Guj) 266

Patel Manubhai Ramabhai V/S State Of Gujarat & 1 other(s) 2022 LiveLaw (Guj) 267

M/S Harekrushna Infra Projects Pvt Ltd & 1 Other(S) V/S State Bank Of India 2022 LiveLaw (Guj) 268

M/s Magirsha Industries versus M/s Gujarat State Fertilizer and Chemicals Limited 2022 LiveLaw (Guj) 269

Navinchandra Somchand, Died Through His Heirs & 1 Other(S) V/S Heirs Of Somchand Bechardas & 6 other(s) 2022 LiveLaw (Guj) 270

Sabirmiya Gulamahemad Ghori V/S Ahmedabad Municipal Corporation & 1 other(s) ) 2022 LiveLaw (Guj) 271

Rajendrasinh Velubha Jadeja V/S General Manager (Project) ) 2022 LiveLaw (Guj) 272

R/Special Civil Application No. 12864 of 2021 ) 2022 LiveLaw (Guj) 273

State Of Gujarat Versus Kishorbhai Devjibhai Parmar & 4 other(s) 2022 LiveLaw (Guj) 274

abhishek industrial service pvt. Ltd v/s nathabhai bhagwanjibhai rathod & 2 other(s) 2022 LiveLaw (Guj) 275

Rajubhai Kamabhai Desai V/S State Of Gujarat & 1 other(s) 2022 LiveLaw (Guj) 276

Sushant Siddhnath Yasu v/s State Of Gujarat 2022 LiveLaw (Guj) 277

Jayeshbhai Jivanbhai Patel v/s Shree Sayan Vibhag Sahakari Khand Udhyog Mandli Ltd & 2 other(s) 2022 LiveLaw (Guj) 278

M/S Mahalaxmi Textiles A Proprietorship Firm Thorugh Its Proprietor Bhartiben Maheshbhai Chevli V/S Syndicate Bank Surat Main Branch 2022 LiveLaw (Guj) 279

M/S Sanganer Enviro Project Development V/S State Of Gujarat 2022 LiveLaw (Guj) 280

Krishna Calibration Services v. Jasmin Bharat Patel 2022 LiveLaw (Guj) 281

Akil Valibhai Piplodwala (Lokhandwala) V/S District Superintendent Of Police, Panchamahal At Godhra 2022 LiveLaw (Guj) 282

Madyahan Bhojan Yojna Karmachari Sangh V/S State Of Gujarat 2022 LiveLaw (Guj) 283

State Of Gujarat V/S Raib Jusab Sama Musalman 2022 LiveLaw (Guj) 284

Sailesh Shantilal Lunavia V/S Carborandum Universal Limited 2022 LiveLaw (Guj) 285

State Of Gujarat - For & On Behalf Of R N Joshi, Food Inspec V/S Ilesh Himmatlal Bhuptani & 3 other(s) 2022 LiveLaw (Guj) 286

Rameshbhai Bhagwanbhai Jadav Versus The State Of Gujarat & 1 other 2022 LiveLaw (Guj) 287

State Of Gujarat V/S Laxmanbhai @ Lakhabhai Pratapbhai Thakor & 2 other(s) 2022 LiveLaw (Guj) 288

The New India Assurance co. Ltd v/s Thakor Kanaji Viraji 2022 LiveLaw (Guj) 289

Rayma Adham Sela Versus State Of Gujarat 2022 LiveLaw (Guj) 290

Vijaybhai Mansibhai Khavada (Khartani) V/S State Of Gujarat 2022 LiveLaw (Guj) 292

M/S. Overseas healthcare pvt. Ltd. V/s state of Gujarat 2022 LiveLaw (Guj) 293

Universal Hospital A1 Ain Llc V/S M/S Yes Bank Limited 2022 LiveLaw (Guj) 294

Anilsinh Laghubha Jadeja V/S State Of Gujarat 2022 LiveLaw (Guj) 295

Sunil Kumar Agarwal v Insolvency and Bankruptcy Board of India (IBBI) 2022 LiveLaw (Guj) 296

Gopalbhai Naranbhai @ Narubhai Bhagubhai Ratadiya V/S State Of Gujarat 2022 LiveLaw (Guj) 297

M/S. Mahee Cotex v/s Central Bank Of India, authorised officer 2022 LiveLaw (Guj) 298

Jamnagar municipal corporation v/s Avdhesh Kishor Bhai Solanki 2022 LiveLaw (Guj) 299

Power Grid Corporation of India Limited. V/s Manojbhai Dashrathbhai Patel 2022 LiveLaw (Guj) 300

ORDERS/JUDGMENTS OF THE MONTH (JULY 2022)

Witness Saw Accused Near Deceased, Blood Stained Weapon Recovered: Gujarat High Court Accepts Circumstantial Evidence To Affirm Murder Conviction

Case Title: Narubhai Amarsinh Makwana(Koli Patel) V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 253

The High Court recently affirmed the conviction of a man under Section 302 IPC for Murder, while observing that the chain of circumstantial evidence was completed by the prosecution with cogent evidence, to bring home his guilt.

The Bench comprising Justices Vipul Pancholi and Rajendra Sareen heavily relied on the statement made by a prosecution witness who saw the accused near the cot of the deceased with a weapon as also the recovery of a blood-stained Dharia from the accused.

Municipalities Empowered In Law To Retire Employees At Age Of 55 Yrs By Giving Three Months' Notice: Gujarat High Court

Case Title: chief officer v/s decd. Shree solanki kanubhai danabhai through legal heirs manjulaben w/o kanubhai solanki

Citation: 2022 LiveLaw (Guj) 254

The High Court has upheld the power of municipalities under the Gujarat Municipalities Act and the Rules framed thereunder to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months notice.

A bench of Justice Biren Vaishnav observed,

"It was within the powers of the municipality in exercise of powers under Sec.271 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof."

Heroin Smuggling Case: Gujarat High Court Grants 3 Days' Bail To Accused Rafik Adam Sumra On Daughter's Nikaah

Case Title: Rafik Adam Sumra V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 255

The Gujarat High Court has granted temporary bail of three days to Rafik Adam Sumra, accused in the infamous heroin smuggling case of 2018, for attending the marriage ceremony of his daughter.

A Bench comprising Justice Vipul Pancholi and Justice Sandeep Bhatt ordered that Rafik shall be released on temporary bail during the period from July 16 to July 18, 2022, with police escort, on executing personal bond of Rs. 5,000/- before the Jail authority. The cost of police escort shall be borne by him.

Debt Recovery Tribunal Can't Go Beyond Reliefs Sought For By A Party: Gujarat High Court

Case Title: Gujarat State Financial Corporation Ltd V/S India Sme Assets Reconstruction Company Limited & 8 Other(S)

Citation: 2022 LiveLaw (Guj) 256

The Gujarat High Court has made it clear that a Debt Recovery Tribunal cannot go beyond and grant prayers that are not even sought for by a party before it.

While hearing a petition filed by the original defendant against the impugned order in favour of original applicant (respondent herein), Justice Vaibhavi D Nanavati observed,

"The submissions advanced by Mr. Asthavadi, the learned advocate appearing for the writ-applicant requires consideration as can be seen from the above prayers there is no such prayer as prayed for by the respondent No.1 as granted by the DRTII. It appears that DRT-II has erred in granting the prayer which was not prayed for even by the respondent No.1...Accordingly this Court is inclined to modify the order dated 27.06.2014."

'No Writ Can Lie On The Principle That Candidates Have A Legitimate Expectation To Know Their Raw Marks Or Attempt Answer Keys': Gujarat High Court

Case Title: Jayesh Nebhabhai Kambariya V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 257

The Gujarat High Court has recently held that no writ can lie on the principle that candidates have a legitimate expectation to get their raw marks known or attempt answer keys. It was further remarked, "merely because the apprehension of the petitioners is that they had got less marks than expected is no ground on which a challenge to the adoption of normalization procedure can be sustained."

Scolding Employee To Maintain Office Discipline Does Not Amount To Abetment Of Suicide U/S 306 IPC: Gujarat High Court

Case Title: Sanjay Kanakmal Agarwal V/S The State Of Gujarat

Citation: 2022 LiveLaw (Guj) 258

The Gujarat High Court has observed that an employer scolding its employee to maintain discipline in the office would not amount to the former abetting the suicide of latter and it would not constitute an offence within the fold of Section 306 of IPC.

Justice Nirzar Desai further held that if bona fide action of maintaining discipline in the office is registered as an offence under Section 306 IPC, then it would post a threat to all employers. It observed,

"When an employee is scolded just with a view to maintain office discipline and out of fear or being hypersensitive, if an employee commits suicide, that would not constitute an offence attracting provisions of Section 306 of Indian Penal Code as the action taken by the employer was in good faith to maintain office discipline."

'Bank Has Symbolic Possession Of Mortgaged Properties': Gujarat High Court Refuses To Cancel 2016 Bail Order For Non-Repayment 10 Cr Loan

Case Title: Nasik Merchants' Co-Operative Bank Ltd. V/s State Of Gujarat & 1 other(s)

Citation: 2022 LiveLaw (Guj) 259

The Gujarat High Court has recently declined to cancel the bail of the Respondent-Accused for offences under Sections 406 and 420 added with Sections 467, 468 and 471 of the IPC on the ground that the Applicant-Bank had already taken 'symbolic possession' of certain properties long back. However, the Bank had not proceeded further in almost six years regarding these properties.

The High Court, therefore, felt that it should not interfere with the order of the Sessions Court which had granted bail to the Accused vide an order of 2016.

S.25 NDPS Act | Gujarat High Court Denies Bail To Senior Citizen Over Recovery Of Poppy Straw Worth ₹16.6 Lakh From His Property

Case Title: Narughar Songhar Goswami V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 260

The Gujarat High Court has refused regular bail under Section 439 of CrPC to a 66 years old man, from whose property contraband (Poppy Straw) worth Rs. 16.6 lakh was seized.

Justice SH Vora observed that though the senior citizen was not at the scene of offence or in the nearby vicinity, however, since he was the property owner, Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is attracted to the case.

Private Negotiations Between Two Govt Agencies For Land Transfer Does Not Determine Its True Market Value: Gujarat High Court

Case Title: Western Dedicated Freight Corridor Corporation Of India V/S Original Claimants & 3 other(s)

Citation: 2022 LiveLaw (Guj) 261

The Gujarat High Court has held that private negotiations between government agencies for land transfer does not determine the true market value of the land.

Thus, the High Court expressed doubt over an Arbitral award which granted compensation in favour of the private landowners ('Claimants'), whose lands were acquired by Western Dedicated Freight Corridor Corporation Of India, based on rates fixed by the Railway Administration for acquiring certain state government lands for a Freight Corridor, in a nearby village.

IBC | Operational Creditor's Failure To File Its Claim Before Approval Of Resolution Plan Extinguishes Such Claim: Gujarat High Court

Case Title: Garden Silk Mills Limited & 1 Other(S) V/S Liquidator Of Petrofils Cooperative Limited & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 262

The Gujarat High Court upheld the argument made by an insolvent company having undergone Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016, that failure of an Operational Creditor to file its claim with the Resolution Professional during the insolvency resolution process or to challenge the Resolution plan before NCLT/NCLAT, extinguishes its claim upon approval of the Resolution Plan.

Gujarat Mining Rules | Seized Property Must Be Produced Before Court Along With Written Complaint After Expiry Of 45 Days: High Court

Case Title: Solanki Haribhai Arjanbhai V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 263

The Gujarat High Court has reiterated that it is obligatory for the investigator to approach the Court of Sessions with a written complaint and produce the seized properties before the Court on expiry of 45 days from the date of seizure, as specified under Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017.

In the absence of such an exercise, the purpose of seizure and the bank guarantee would stand frustrated and consequently, the property will have to be released to the person from whom it was seized without bank guarantee, the court added.

Gujarat Mining Rules | Locking Of Online ATR Account / Suspension Of Transit Permit Must Be Supported By Reasons In Writing: High Court

Case Title: Dhanrajsinh Gambhirsinh Thakore V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 264

The Gujarat High Court has reiterated that under the Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2017, transit permit can be suspended/ locking of online ATR account can be ordered for alleged violations only for reasons to be recorded in writing.

Justice AS Supehia observed,

"Respondent authorities, at the first instance before locking the ATR account of the petitioner are supposed to give a show-cause notice and hearing and after considering such a representation or the defence of the petitioner, would have to pass the order suspending or locking the online ATR account of petitioner."

Suspension Period Cannot Be Treated 'Wholly Unjustified' In Case Of Partial Exoneration: Gujarat High Court

Case Title: Narendrasinh Dosabhai Gohil V/S Managing Director & 2 Other(S)

Citation: 2022 LiveLaw (Guj) 265

The Gujarat High Court has dismissed the petition filed by an employee seeking that his period of suspension be treated as 'regular' on the ground that the Petitioner had been charge-sheeted and was only partially exonerated from the charges against him. Justice Biren Vaishnav observed:

"Only when an employee is partially exonerated, would the authority need to decide the question of whether the suspension can be treated to be wholly unjustified and whether he should therefore be given such proportion of pay and allowance as the competent authority would prescribe by a specific order...Here is a case where on a charge-sheet being issued, the order of penalty was passed. Obviously therefore not exonerating the petitioner from the charge. It was therefore, within the right of the employer to treat the period of suspension as such reinstating the petitioner in service with a condition that orders of regularization of suspension is kept in abeyance."

Gravity Of Offence Cannot Overweigh Legal Proof: Gujarat High Court Upholds Acquittal Of POCSO Accused

Case Title: State Of Gujarat V/S Hasmukhbhai @ Harshadbhai Dahyabhai Makwana

Citation: 2022 LiveLaw (Guj) 266

The Gujarat High Court has dismissed the appeal of the State Government challenging the acquittal of a person accused under the POCSO Act, citing lack of evidence. A bench of Justice SH Vora and Justice Rajendran Sareen observed:

"Here in this case it is to be noted that on one side the complainant has alleged against the respondent accused regarding sexual assault upon her victim daughter and merely after a span of 3 to 4 days she has alleged against her own husband regarding sexual assault upon her victim daughter. As such, two contradictory versions have been stated by the complainant within a span of 4 days against two persons and both the allegations are based on suspicion and doubt, one against the present respondent accused and another against her husband. As such, mere suspicion and doubt cannot be considered to be cogent and convincing proof to prove the allegations."

'No Locus': Gujarat High Court Dismisses Plea Seeking CID Probe Into Alleged Corruption & Irregularities In Agriculture Produce Market

Case Title: Patel Manubhai Ramabhai V/S State Of Gujarat & 1 other(s)

Citation: 2022 LiveLaw (Guj) 267

The Gujarat High Court dismissed a plea seeking probe by specialized agency like CID (Economic Offences Wing) or Anti-Corruption Bureau into alleged corruption and financial irregularities of "millions of rupees" in the Agriculture Produce Market.

Justice Nirzar Desai observed that the complainant (Applicant herein) could not establish his locus standi and that he could not point out as to how he is aggrieved by the alleged offences committed by the persons named in the application.

Principle Of Promissory Estoppel Applies After Customer Acts On Basis Of Bank's One Time Settlement Scheme: Gujarat High Court

Case Title: M/S Harekrushna Infra Projects Pvt Ltd & 1 Other(S) V/S State Bank Of India

Citation: 2022 LiveLaw (Guj) 268

The Gujarat High Court has held that once a customer acts on the basis of offer made by a Bank under its One Time Settlement scheme, the principle of promissory estoppel applies and the latter is estopped from acting to the detriment of the former.

"It is clear that the principle of promissory estoppel applies. The bank by its conduct of offering an OTS settlement intended to create legal relations which the petitioners had acted upon in light of the promise made and paid the amount on or before 30th of December 2017. This action was apparently accepted in principle by the bank as not only for the title clearance certificate but valuation reports letters were written by by the bank to the advocates and the valuers. The amounts were paid and accepted by the bank and once the petitioners had acted upon on the promise set out by the bank, the bank cannot be allowed to go back on its proposal on the basis of a letter dated 28th August 2018 stating that the scheme of OTS was not applicable as the cases of the petitioners was reported as fraud."

Dispute Referred To Arbitration Under MSME Act; Court Can Extend The Mandate Of Arbitrator Under Section 29A Of A&C Act: Gujarat High Court

Case Title: M/s Magirsha Industries versus M/s Gujarat State Fertilizer and Chemicals Limited

Citation: 2022 LiveLaw (Guj) 269

The Gujarat High Court has ruled that even in cases where the dispute has been referred to arbitration under the Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act), the Court is empowered under Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act) to extend the mandate of the Arbitral Tribunal.

The Single Bench of Chief Justice Aravind Kumar held that in view of Section 18(3) of the MSME Act, the provisions of the A&C Act would be applicable once the dispute is referred to arbitration under the MSME Act, and hence, the Court can extend the mandate of the Arbitral Tribunal under Section 29A of the A&C Act.

S.91/92 Evidence Act Exclude Oral Evidence, Forbid Proving Contents Of Writing Otherwise Than By Writing Itself: Gujarat High Court

Case Title: Navinchandra Somchand, Died Through His Heirs & 1 Other(S) V/S Heirs Of Somchand Bechardas & 6 other(s)

Citation: 2022 LiveLaw (Guj) 270

The Gujarat High Court has explained the relationship between Section 91 and 92 of the Indian Evidence Act, while holding that the provisions in effect supplement each other.

Section 91 (Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents) relates to lead evidence of terms of contract, grants and other disposition of properties, which are reduced to form of documents. This Section merely forbids proving the contents of writing otherwise than by writing itself.

Section 92 (Exclusion of evidence of oral agreement) deals with conclusiveness of the documentary evidence and provides exceptions in which oral evidence against documentary evidence can be admitted.

Employees Can't Be Held Responsible If Employer Grants Terminal Benefits In Excess Of Their Entitlement: Gujarat High Court Quashes Recovery Order

Case Title: Sabirmiya Gulamahemad Ghori V/S Ahmedabad Municipal Corporation & 1 other(s)

Citation: 2022 LiveLaw (Guj) 271

The Gujarat High Court has set aside an order of the Ahmedabad Municipal Corporation directing recovery of Rs. 63,878 from its former employee on the ground that the terminal benefits were wrongly granted to him at a higher pay-scale than he was entitled to.

Justice Biren Vaishnav relied on several decisions of the High Court where it was held that when employees are paid excess amount, not because of any misrepresentation or fraud on their part and if such employees had no knowledge that the amount that was being paid to them was more than what they were entitled to, they can't be held responsible for a mistake on part of the employer.

Whether 'Appropriate Govt' In Industrial Dispute Concerning Person Working At 'Mine Office' Is Centre Or State Depends On Nature Of Work: Gujarat HC

Case Title: Rajendrasinh Velubha Jadeja V/S General Manager (Project)

Citation: 2022 LiveLaw (Guj) 272

The Gujarat High Court has recently explained that when a dispute is raised by employees working in a mine or an office of the mine or ones employed in a mine, it needs to be determined whether the dispute has a nexus to activities in a mine. Only when the industrial dispute concerns a mine can the appropriate government be deemed to be the Central Government as per Sec 2(a) of the Industrial Disputes Act, the Bench explained.

National E-Assessment Centre Acted Thick Skinned: Gujarat High Court

Citation: R/Special Civil Application No. 12864 of 2021

Citation: 2022 LiveLaw (Guj) 273

The Gujarat High Court held that it was pandemic time when the department should have adopted a liberal approach in refusing the request for time for filing objections to the draft assessment order and finally passing the assessment order. The department acted thick-skinned.

The division bench of Justice N.V. Anjaria and Justice Bharghav D. Karia has observed that the assessment proceedings were remanded to the Assessing Officer to be taken up afresh from the stage of the draft assessment order. The court directed the assessing officer to pass an appropriate order after giving the petitioner an opportunity to file a reply.

When Substantial Evidence Is Lacking To Connect Accused With Crime, Other Corroborative Evidence Loses Significance: Gujarat High Court

Case Title: State Of Gujarat Versus Kishorbhai Devjibhai Parmar & 4 other(s)

Citation: 2022 LiveLaw (Guj) 274

The Gujarat High Court has held that where substantial evidence to connect an accused with the crime is lacking, other corroborative evidence loses its significance.

In light of the aforesaid, a Bench comprising Justices SH Vora and Rajendra Sareen upheld an order of acquittal passed by the Sessions Court in a criminal case under Sections 143, 147, 148 and 302 of the Indian Penal Code and Sec 135(1) of the Bombay Police Act.

Employee's Termination Without Departmental Inquiry Based On Incomplete & Non-Specific Show Cause Notice Violative Of S.25G Of ID Act: Gujarat HC

Case Title: abhishek industrial service pvt. Ltd v/s nathabhai bhagwanjibhai rathod & 2 other(s)

Citation: 2022 LiveLaw (Guj) 275

The Gujarat High Court observed that in case of an incomplete show cause notice, to which the respondent workman had no occasion to file his response as expected by the employer, inquiry by issuing specific charge sheet is necessary.

Justice AY Kogje thereby held that when the show cause notice /charge was not specific enough for the workman to respond, termination without proper departmental inquiry was a breach of Section 25(G) of the Industrial Disputes Act.

Gujarat High Court Refuses To Cancel Anticipatory Bail Granted To Rape Accused 5 Yrs Ago

Case Title: Rajubhai Kamabhai Desai V/S State Of Gujarat & 1 other(s)

Citation: 2022 LiveLaw (Guj) 276

The Gujarat High Court has refused to cancel the anticipatory bail granted to a rape accused five years ago, stating that all this time the applicant-victim did not take a stand that seriousness of offence has not been considered by the Court below and that the accused has not misused his liberty nor violated any condition.

The accused was booked for offences punishable under Sections 376, 366, 328, 395, 397, 344, 406, 420, 506(2) and 120(B) of the Indian Penal Code.

Consent Of Complainant Prima Facie Established, FIR Lodged With Delay Of 2.5 Yrs: Gujarat High Court Grants Bail To Rape-Accused

Case Title: Sushant Siddhnath Yasu v/s State Of Gujarat

Citation: 2022 LiveLaw (Guj) 277

The Gujarat High Court granted bail to a rape-accused while observing that from the facts and circumstances of the case, it is of the prima-facie view that the alleged act was consensual in nature.

A bench comprising Justice Ilesh Vora observed that the record and photographs of the parties indicate that the parties were in good terms and the applicant was keenly interested to tie the knot with the victim.

'Lost Sense Of How To Speak & Behave': Gujarat High Court Denies Relief To Registered Society Manager Terminated Over Insubordination & Misconduct

Case Title: Jayeshbhai Jivanbhai Patel v/s Shree Sayan Vibhag Sahakari Khand Udhyog Mandli Ltd & 2 other(s)

Citation: 2022 LiveLaw (Guj) 278

Expressing shock towards the misconduct and negligence displayed by the Petitioner, a Manager of a registered Society, in his duties which 'tarnished the image of the society', the Gujarat High Court has dismissed the application for quashing the communication regarding his termination.

Bank Can't Refuse NOC For Release Of Mortgaged Property After Receiving Sale Consideration From Third Party: Gujarat High Court

Case Title: M/S Mahalaxmi Textiles A Proprietorship Firm Thorugh Its Prorprietor Bhartiben Maheshbhai Chevli V/S Syndicate Bank Surat Main Branch

Citation: 2022 LiveLaw (Guj) 279

The Gujarat High Court has held that once the Bank agrees to sell a property mortgaged with it by a loan defaulter and a third party pays full consideration for purchase of said property after entering into a valid agreement with the Bank, the latter cannot turn back and refuse the title deed, no objection certificate/no due certificate.

Justice Vaibhavi Nanavati thus directed the Respondent, Syndicate bank, to release the charge over the property in question and hand over the original title documents of the property to the Applicant (purchaser) within two weeks.

Can't Maintain Proceedings U/S 34 Arbitration Act Before Two Fora: Gujarat High Court

Case Title: M/S Sanganer Enviro Project Development V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 280

The Gujarat High Court, while dismissing the Civil Application of the Petitioner which challenged the award of the relevant arbitration, has observed that the Petitioner had 'conveniently' initiated two proceedings- one before the instant Bench and another before the District Court under Sec 34. Keeping in view this circumstance, the High Court rejected the petition.

A Party Can Withdraw Its Consent For Reference To Arbitration Under Section 89 Of The CPC Anytime Before The Court Acts Upon Such Consent: Gujarat High Court

Case Title: Krishna Calibration Services v. Jasmin Bharat Patel, R/Special Civil Application No. 5682 of 2021.

Citation: 2022 LiveLaw (Guj) 281

The Gujarat High Court has held that a party can withdraw its consent for reference to arbitration under Section 89 of CPC anytime before the court has acted upon such a reference.

The Bench of Justice Umesh A. Trivedi was dealing with a Special Civil Application under Article 227 against an order of the Civil Judge whereby the application jointly given by the parties to the proceedings to refer the dispute to the Arbitrator under Section 89(2)(a) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') came to be rejected on the original plaintiff, who initially consented for the same, withdrew the consent for sending it to the Arbitrator.

Article 19(1)(e) Not Available To Foreigners: Gujarat High Court Refuses To Interfere With Order For Deportation Of Pakistani National

Case Title: Akil Valibhai Piplodwala (Lokhandwala) V/S District Superintendent Of Police, Panchamahal At Godhra

Citation: 2022 LiveLaw (Guj) 282

The Gujarat High Court has recently dismissed the writ petition of a Pakistani citizen challenging the decision of the Superintendent of Police which directed him to leave India within 24 hours of receipt of the notice. Justice AS Supehia also reiterated:

"In the present case, indubitably, the petitioner is a Pakistan citizen and as per the law enunciated by the Apex Court, he cannot invoke Articles 14 and 19 of the Constitution of India, hence, he has no right to enter and remain within the territories of India. He is bound to the act, as per the order dated 14.07.2022 passed by the respondent authorities."

Gujarat High Court Dismisses Plea Against Outsourcing Work & Administration Of 'Mid Day Meal' Scheme

Case Title: Madyahan Bhojan Yojna Karmachari Sangh V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 283

The Gujarat High Court dismissed a petition against outsourcing the work and administration of the Mid Day Meal Scheme to private players.

A single bench of Justice Biren Vaishnav observed that the objective of Resolution dated 09.11.1984, which first introduced the concept of Mid Day Meal Schemes in the schools run under the State Primary Schools, was to provide nutritional support to students of the primary stage in villages and in areas of Municipal Corporations. At that point, the government was considering a proposal to hand over the implementation of the Scheme to Non Government Organizations on pilot basis.

'No Iota Of Evidence': Gujarat High Court Upholds Acquittal Of Man Accused Of Counterfeiting Currency Worth ₹2000 In 1995

Case Title: State Of Gujarat V/S Raib Jusab Sama Musalman

Citation: 2022 LiveLaw (Guj) 284

The Gujarat High Court has declined to overturn the order acquitting Respondent who was accused of counterfeiting currency notes while noting that 'no iota of evidence' came on record to point out the guilt of the Respondent-Accused.

The Bench comprising Justice SH Vora and Justice Rajendra Sareen concluded that no incriminating evidence was available against the Accused and that merely based on a Transfer Warrant, the Accused had been implicated in the case.

Industrial Disputes Act Is Social Welfare Legislation: Gujarat High Court Directs Labour Court To Re-Examine Order Refusing 'Interest' To Workers

Case Title: Sailesh Shantilal Lunavia V/S Carborandum Universal Limited

Citation: 2022 LiveLaw (Guj) 285

While reiterating that Courts have a duty to interpret statutes with social welfare to further the statutory goal, the Gujarat High Court has directed the Labour Court at Jamnagar to re-examine the issue of awarding interest to the Petitioner workmen.

The Petitioners had submitted that there is no discussion on the issue as to why the interest was not awarded to them.

Justice Biren Vaishnav had taken up both Special Civil Applications for the final hearing and relied extensively on Manager, Naaz Cinema Vs. Vasantben Rameshbhai Ghumadiya w/d of Rameshbhai Raijibhai Ghumadiya [2011(2) G.L.H.523] adjudicated by the Division Bench of the Gujarat High Court.

Food Adulteration Act | Statutory Procedure For Drawing Samples Is Mandatory: Gujarat High Court Refuses To Reverse Acquittal

Case Title: State Of Gujarat - For & On Behalf Of R N Joshi, Food Inspec V/S Ilesh Himmatlal Bhuptani & 3 other(s)

Citation: 2022 LiveLaw (Guj) 286

The Gujarat High Court has upheld the order of acquittal in a matter involving offences under Sections 2(ia)(a)(f)(m) and Section 7(1)(5) and Section 16(1) of the Prevention of Food Adulteration Act, 1954.

The Bench comprising Dr Justice Ashokkumar Joshi found that the Sanitary Inspector while collecting the sample of soji had failed to seal the product in a wooden box and had not made three parts of the 600 grams of samples which was mandatory under Rule 14 and Sec 16(b) of the Act.

Una Flogging Case 2016: Gujarat HC Grants Bail To 4 Accused, Orders State To Make Appropriate Arrangements For Conclusion Of Trial

Case title - Rameshbhai Bhagwanbhai Jadav Versus The State Of Gujarat & 1 other

Citation: 2022 LiveLaw (Guj) 287

The Gujarat High Court granted regular bail to four key accused in the July 2016 Una Dalig Flogging case. This is the first time in the last six years that the court has granted bail to the accused in the case.

The court observed that the accused have already served nearly six years of imprisonment, and there has been little progress in the trial of the case. The accused were allegedly a part of a group of cow vigilantes who attacked some Dalit men for skinning a dead cow in Una on July 11, 2016.

Oral Dying Declaration Which Is Reliable & Not Controverted By Defence Is Admissible In Evidence: Gujarat High Court

Case Title: State Of Gujarat V/S Laxmanbhai @ Lakhabhai Pratapbhai Thakor & 2 other(s)

Citation: 2022 LiveLaw (Guj) 288

In a significant decision, the Gujarat High Court has made it clear that a dying declaration cannot be said to be inadmissible merely because it was given orally. A single bench of Dr. Justice Ashokkumar Joshi observed that an "oral dying declaration" given by the deceased, which is not controverted by the defence in cross-examination, is admissible in evidence.

Holding thus, the High Court allowed the State's appeal and overturned the decision of the Sessions Court acquitting the husband and in-laws of the deceased for abetting her to commit suicide by harassment for dowry.

Motor Accident Claims Tribunal Can Recall Its Own Order If Claimant Plays Fraud: Gujarat High Court

Case Title: the new india assurance co. Ltd v/s thakor kanaji viraji

Citation: 2022 LiveLaw (Guj) 289

The Gujarat High Court has made it clear that when a party before the Motor Accident Claims Tribunal, in this case claimant, plays a fraud with the Tribunal, the Tribunal is empowered to recall its order by which it granted relief.

Justice Gita Gopi observed,

"The review application would survive having fallen under Order 47(1) of CPC since it was an error apparent on the face of record. Even otherwise, as it was urged of fraud by the driver and owner, the Tribunal had power to recall its own order."

Gujarat High Court Upholds Acquittal Of Man Accused Of Forging Records To Grab Land Vacated After Migration Of Owners To Pakistan In 1971

Case Title: Rayma Adham Sela Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 290

The Gujarat High Court has upheld an order of trial court acquitting one Rayma Adham Sela accused of forging documents to show himself as the legal heir of original landowners who migrated to Pakistan in the year 1971-72.

A Bench comprising Justice SH Vora and Justice Rajendra Sareen was told that after the original owners of the land and house left for Pakistan, the accused created false, fabricated and concocted affidavits and entered their names in the revenue records by committing offence of cheating and forgery.

Article 21| 'Right To Life Extends To Foreign Nationals': Gujarat HC Permits Canadian Woman To Undergo Kidney Transplant Without Domicile Certificate

Citation: 2022 LiveLaw (Guj) 291

Relying on the Apex Court's judgment in Chairman Railway Board and Ors. vs. Chandrima Das and Ors., (2000) 2 SCC 465, Justice AS Supehia of the Gujarat High Court has reiterated that the right to live includes the right to live with human dignity, and the term 'person' used in Art 21 extends to citizens and foreign nationals, alike.

The High Court made these remarks in the background of a petition by an ailing Canadian woman who was being denied a kidney transplant basis the lack of a Domicile Certificate. The Respondent authorities were insisting upon the woman first obtain a Domicile Certificate in order for her to undertake the necessary procedure for kidney transplantation.

Powers U/S 482 CrPC To Be Exercised Sparingly, Particularly When Section 302 Is Involved: Gujarat High Court

Case Title: Vijaybhai Mansibhai Khavada (Khartani) V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 292

Justice Niral R Mehta of the Gujarat High Court has declined to exercise its extraordinary jurisdiction under Section 482 of CrPC to quash the FIR particularly, when the offence of Sec 302 was involved.

Justice Mehta relied on M/s. Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and other 'celebrated judgements' of the Supreme Court to conclude that the power of quashing FIR should be exercised sparingly, with circumspect, in the 'rarest of rare cases'.

State Action Not Amenable To Writ Jurisdiction In Contractual Setting: Gujarat High Court

Case Title: M/S. Overseas healthcare pvt. Ltd. V/s state of gujarat

Citation: 2022 LiveLaw (Guj) 293

The Gujarat High Court has observed that when the State or its instrumentality enters into a contract with a contractor or bidder, they would be governed by the terms of the contract and ordinarily both the parties would be governed by the law that governs the terms and conditions of the contract. It added, that in such circumstances, the acts of the State would not be amenable to the writ jurisdiction.

The Bench comprising Chief Justice Aravind Kumar and Justice Ashutosh Shastri held thus while dismissing the writ petition filed the Petitioner, a manufacturer in the healthcare sector having entered into a contract with the State for supply of certain medicine, challenging the Risk Purchase Recovery Orders issued by the Gujarat Medical Services (Respondent No. 2).

Yes Bank Is A Private Entity, Not Amenable To Writ Jurisdiction: Gujarat High Court

Case Title: Universal Hospital A1 Ain Llc V/S M/S Yes Bank Limited

Citation: 2022 LiveLaw (Guj) 294

The Gujarat High Court has held that Yes Bank Ltd is a private bank and is not amenable to writ jurisdiction under Article 226 of the Constitution.

A single bench of Justice Vaibhavi D. Nanavati observed that private financial institutions, carrying commercial activities or business would not come under the scope of 'State' as defined under Article 12, although, they are performing public duties. It highlighted that such that private financial institutions do not receive any financial assistance from the Government and and no state protection is offered to such institutions.

Court Can Interfere With Preventive Detention Order At "Pre-Execution Stage" If Based On Vague, Extraneous Grounds: Gujarat High Court

Case Title: Anilsinh Laghubha Jadeja V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 285

The Gujarat High Court has reiterated that preventive detention orders can be interfered with at pre-execution stage, i.e., before the person accused is detained, if the said order is passed on vague, irrelevant grounds.

The Petitioner had filed the instant application since he apprehended being detained under Prevention of Anti-Social Activities Act (PASA Act) on the pretext of the FIRs for offences punishable under Sections 65AE, 81 and 98(2) of Prohibition Act. He primarily contested that his alleged activity did not affect the maintenance of public adversely.

Gujarat High Court Stays IBBI's Order Requiring Resolution Professional To Undergo Pre-Registration Educational Course From IPA

Case Title: Sunil Kumar Agarwal v Insolvency and Bankruptcy Board of India (IBBI)

Citation: 2022 LiveLaw (Guj) 296

The Gujarat High Court, Ahmedabad Bench, comprising of Justice A.S. Supehia, while adjudicating a writ petition in Sunil Kumar Agarwal v Insolvency and Bankruptcy Board of India (IBBI), has stayed the order passed by the Disciplinary Committee of IBBI against the Resolution Professional, requiring the latter to undergo pre-registration educational course from the IPA of which he is a member. The next date of hearing is 09.09.2022.

S.226 - 228 CrPC Meant To Ensure Expeditious Disposal Of Criminal Case, Parties Must Not Indulge In Dilatory Tactics: Gujarat High Court

Case Title: Gopalbhai Naranbhai @ Narubhai Bhagubhai Ratadiya V/S State Of Gujarat

Citation: 2022 LiveLaw (Guj) 287

The Gujarat High Court has dismissed a revision petition seeking reconsideration of application filed by Petitioner-Accused under Section 227 CrPC for discharge from a murder and assault case.

The Bench comprising Justice Samir Dave noted that the charge and framing of charge have been deferred time and again due to several applications moved by the petitioner along with co-accused which ultimately prolonged the trial. It observed,

"Present petition is nothing but a delaying tactic as the application seems to have been deferred on several occasions, whereas the co-accused seem to have been assassinating and languishing in the prison wherein the charge till date has not been framed or followed by the commencement of the trial due to several applications moved by the petitioner...The very purpose and the object of following the provisions of Sections 226 to 228 of the Cr.P.C. is to ensure the expeditious disposal of the Sessions Case so that the accused is discharged if there is not sufficient material against him or he can be tried quickly by following the due procedure laid down under Chapter-28 of the Cr.P.C."

Remedies Under SARFAESI Act Are Expeditious & Effective: Gujarat High Court Declines Writ Petition Against Rejection Of Early Hearing By DRT

Case Title: m/s. Mahee cotex v/s central bank of india, authorised officer

Citation: 2022 LiveLaw (Guj) 288

The Gujarat High Court has declined to exercise its writ jurisdiction under Article 226 in a petition challenging order of the Debt Recovery Tribunal which rejected Petitioner's application for preponement of hearing, fearing dispossession from property.

Justice Vaibhavi D. Nanavati observed that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective and thus court must refrain from exercising its writ jurisdiction in such matters.

Workman In Continuous Service For Years Without Any Break Can't Be Denied Benefit U/S 25F ID Act Merely Because Of Contractual Engagement: Gujarat HC

Case Title: Jamnagar Municipal Corporation V/S Avdesh Kishorbhai Solanki

Citation: 2022 LiveLaw (Guj) 289

The Gujarat High Court has held that a workman cannot be denied the benefit of Section 25F of the Industrial Disputes Act which prescribes conditions precedent to retrenchment merely because he is engaged on contract basis, given that he rendered continuous services for several years, without any break.

In this light, Justice AY Kogje dismissed the petition filed by the Jamnagar Municipal Corporation challenging the award of the Labour Court which directed reinstatement of one such contractual workman, whose services were the terminated due to outsourcing of contract work.

Telegraph Act | Suit Over Insufficiency Of Compensation Maintainable In Civil Court: Gujarat High Court

Case Title: power grid corporation of india limited. V/s manojbhai dashrathbhai patel

Citation: 2022 LiveLaw (Guj) 300

The Gujarat High Court recently ruled that under the Indian Telegraph Act, 1885, determination of full compensation to the aggrieved can be done by the civil court if the dispute is regarding the insufficiency of compensation paid under Section 10(d) of the Act.

Justice Umesh Trivedi found that such claims need not be filed before the District Judge as contended by the petitioner authority, particularly since it had not paid full compensation in the case.

"Once there is no payment of full compensation, there is no question of directing a person to approach District Judge by way of application against insufficiency of compensation. For non-payment of compensation under all heads of damages conceivable, remedy lies before the civil Court. Here in this case, no such compensation is even contemplated by the petitioner - defendant and they are satisfied with payment made towards cutting of trees and damage to standing crops."


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