Gujarat High Court Monthly Digest: March 2022 [Citations 60 To 101]

Nominal Index

Ayeshaben wd/o. Ahmed Adam Alinatha & 8 other(s) versus Huriben Ismail Ali Since Deceased through legal heirs 2022 LiveLaw (Guj) 60

Keshavbhai Mohanbhai Bhut vs Ranabhai Kalabhai Senta 2022 LiveLaw (Guj) 61

Saint-Gobain India Private Limited Versus Union Of India 2022 LiveLaw (Guj) 62

Amit Harishkumar Doctor Versus Union of India 2022 LiveLaw (Guj) 63

Messers Filatex India Ltd. Versus Union Of India 2022 LiveLaw (Guj) 64

M/s Bodal Chemicals Ltd. Versus Union Of India 2022 LiveLaw (Guj) 65

YASH JAYESHBHAI CHAMPAKLAL SHAH Versus STATE OF GUJARAT 2022 LiveLaw (Guj) 66

M/s. IPCA Laboratories Versus Commissioner 2022 LiveLaw (Guj) 67

Sukeshi Vijaybhai Bhatt Versus State Of Gujarat 2022 LiveLaw (Guj) 68

Chaudhary Pravinbhai Revabhai Versus State Of Gujarat 2022 LiveLaw (Guj) 69

State Of Gujarat v. Ugamsinh Dhanrajsinh 2022 LiveLaw (Guj) 70

Raghuversinh Chandrasinh Sarvaiya v. State of Gujarat 2022 LiveLaw (Guj) 71

Archana Mukesh Raval v. State Of Gujarat 2022 LiveLaw (Guj) 72

Mohsin Salimbhai Qureshi v. State Of Gujarat 2022 LiveLaw (Guj) 73

State Of Gujarat vs Natvarsinh Prabhatsinih Rathod 2022 LiveLaw (Guj) 74

Sunilkumar Rajeshwarprasad Sinha v. State Of Gujarat 2022 LiveLaw (Guj) 75

Sacha Adivasi Adhikar Trust v. State Of Gujarat 2022 LiveLaw (Guj) 76

Chandubhai Punjabhai Talpada v. Deputy Executive Engineer 2022 LiveLaw (Guj) 77

Kabindra Satyanarayan Singh v. State of Gujarat thru The Addl. Chief Secretary 2022 LiveLaw (Guj) 78

Rubina @ Rubi Anwarhusen Sunni (Muslim) Versus State Of Gujarat 2022 LiveLaw (Guj) 79

State Of Gujarat v. Ratniyabhai Nevsingbhai Rathva 2022 LiveLaw (Guj) 80

Reliance General Insurance Company Limited v. Ashaben Vikrambhai Chauhan 2022 LiveLaw (Guj) 81

Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat 2022 LiveLaw (Guj) 82

Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S) 2022 LiveLaw (Guj) 83

Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat 2022 LiveLaw (Guj) 84

Dilip Bhavanishankar Yadav v. State Of Gujarat 2022 LiveLaw (Guj) 85

Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat 2022 LiveLaw (Guj) 86

A B C (Victim) vs State Of Gujarat 2022 LiveLaw (Guj) 87

Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi 2022 LiveLaw (Guj) 88

Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person 2022 LiveLaw (Guj) 89

M/s New Nalbandh Traders Versus State of Gujarat 2022 LiveLaw (Guj) 90

Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police 2022 LiveLaw (Guj) 91

Ramsingbhai Saburbhai Patel vs State Of Gujarat 2022 LiveLaw (Guj) 92

Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat 2022 LiveLaw (Guj) 93

Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh 2022 LiveLaw (Guj) 94

Niraj Jaidev Arya Versus State of Gujarat 2022 LiveLaw (Guj) 95

Gitaben Govindbhai Patel vs Rameshbhai Hirabhai Patel 2022 LiveLaw (Guj) 96

-Mohsinkhan Muso Murajkhan v. Directorate General Of Police 2022 LiveLaw (Guj) 97

Chandra Darshan Developers Through Partner Versus Hiralal Gopalbhai 2022 LiveLaw (Guj) 98

M/s Dilipkumar Chandulal Versus State of Gujarat 2022 LiveLaw (Guj) 99

STATE OF GUJARAT Versus RAVAL DEEPAKKKUMAR SHANKERCHAND & 2 other(s) 2022 LiveLaw (Guj) 100

Shri Shakti Cotton Pvt. Ltd. Versus Commercial Tax Officer 2022 LiveLaw (Guj) 101

JUDGMENTS OF THE MONTH

1. 'Reason Is The Heartbeat Of Conclusion': Gujarat High Court Asks All Presiding Officers To Pass Speaking Orders

Case Title: AYESHABEN WD/O. AHMED ADAM ALINATHA & 8 other(s) Versus HURIBEN ISMAIL ALI SINCE DECEASED THROUGH LEGAL HEIRS

Citation: 2022 LiveLaw (Guj) 60

"Reason is the heartbeat of every conclusion, and without the same it becomes lifeless," the Gujarat High Court remarked.

Justice Ashokkumar Joshi was hearing a writ petition challenging the judgement of the First Appellate Court which condoned delay of 2 years and 5 months in the filing of execution petition against the judgement of the Civil Judge, without assigning proper reasons.

2. Procedure U/S 203 CrPC Duly Followed: Gujarat High Court Refuses To Quash Trial Court Order Dismissing Private Complaint

Case Title: Keshavbhai Mohanbhai Bhut vs Ranabhai Kalabhai Senta

Citation: 2022 LiveLaw (Guj) 61

Affirming the Trial Court's decision of dismissing a private complaint on the ground that the dispute was of civil nature, the High Court observed that the Trial Court had duly followed the procedure under Section 203 of the Code of Criminal Procedure.

The Bench comprising Justice Vipul Pancholi was hearing a petition under Art 227 wherein the Petitioner had challenged the order of the Additional Sessions Judge dismissing the revision application of the Petitioner against the order of Magistrate, dismissing his private complaint under Section 203 CrPC.

3. Entitlement To Refund Rests With Those Who Bear Ultimate Burden Of Tax Under Central Sales Tax Act: Gujarat High Court

Case Title: SAINT-GOBAIN INDIA PRIVATE LIMITED Versus UNION OF INDIA

Citation: 2022 LiveLaw (Guj) 62

The Gujarat High Court has recently affirmed a coordinate bench judgment which held that only the persons on whom lay the ultimate burden to pay the tax would be entitled to get a refund of the same.

The Bench of Justice JB Pardiwala and Justice Nisha Thakore have upheld this in a writ application seeking refund from State under the Central Sales Tax Act 1956. The refund sought was to the tune of INR 2,30,11,188.

4. Gujarat High Court Releases Confisticated Cash, Goods As GST Dept. Delayed Issuance Of SCN Beyond Statutory Time Period

Case Title: Amit Harishkumar Doctor Versus Union of India

Citation: 2022 LiveLaw (Guj) 63

The Gujarat High Court has released the confisticated ​​cash and goods as the Goods and Service Tax (GST) Department delayed issuance of Show Cause Notice (SCN) beyond statutory time period.

The division bench of Justice Sonia Gokani and Justice Hemant M. Prachchhak has observed, "it is quite unfathomable as to why the time limit is not adhered to and issuance of the show cause notice has been delayed beyond the statutory time period and hence, intervention will be necessary at the end of this Court by keeping open the rights of the respondents to initiate adjudication process afresh in accordance with law."

5. Input/Output Ratios To Be Considered For Determining Quantum Of Refund Of Unutilized GST ITC: Gujarat High Court

Case Title: Messers Filatex India Ltd. Versus Union Of India

Citation: 2022 LiveLaw (Guj) 64

The High Court has ruled that the input or output ratios to be considered for determining the quantum of refund of unutilized Input Tax Credit (ITC).

The division bench of Justice J.B.Pardiwala and Justice Nisha M.Thakore has directed Assistant Commissioner to adjudicate the claim of the writ applicants in accordance with Sub Rule (4B) of Rule 89 of the CGST Rules, but keeping in mind the formula of input or output ratio of the inputs or raw materials used in the manufacturing of the exported goods.

6. Dept. Can't Raise Their Hands In Despair For Technical Glitches In GST Portal: Gujarat HC Directs Dept. To Allow Manual Furnishing Of GSTR-6

Case Title: M/s Bodal Chemicals Ltd. Versus Union Of India

Citation: 2022 LiveLaw (Guj) 65

The High Court came down heavily on the Goods and Service Tax Department for technical glitches in the portal.

The division bench of Justice J.B.Pardiwala and Justice Nisha M. Thakore observed that the writ petitioner/ taxpayer has been running from pillar to post requesting the respondents/ department to provide a solution and take care of the technical error and glitch that occurred as regards furnishing the GSTR-6 return for recording and distributing the Input Service Distributor (ISD) credit.

7. NDPS Act- Mere Contacts With Co-Accused Not Corroborative Material In Absence of Substantive Material Found Against Accused: Gujarat High Court

Case Title: YASH JAYESHBHAI CHAMPAKLAL SHAH Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 66

"Mere contacts with the co-accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused," the High Court affirmed.

The Bench comprising Justice Umesh A. Trivedi was hearing an application under Section 439 for offences under Sections 8(c), 22(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985.

8. ITC Received From Input Service Distributor Lying Unutilized In Electronic Credit Ledger Liable To Be Refunded: Gujarat High Court

Case Title: M/s. IPCA Laboratories Versus Commissioner

Citation: 2022 LiveLaw (Guj) 67

The High Court has held that Input Tax Credit received from input service distributor lying unutilized in electronic credit ledger is liable to be refunded.

The division bench of Justice J.B.Pardiwala and Justice Nisha M.Thakore directed the respondent/department to process the claim of refund made by the writ petitioner/assessee for the unutilized IGST Credit lying in the Electronic Credit Ledger under Section 54 of the CGST Act 2017.

9. Town Planning Scheme Already Sanctioned For Public Purposes: Gujarat High Court Refuses To Quash The Scheme And Grant Compensation To Appellants

Case Title: SUKESHI VIJAYBHAI BHATT Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 68

The Gujarat High Court has recently upheld, "with regard to the legality and effect of sanctioned Town Planning Scheme under the Bombay Town Planning Act as well as Gujarat Town Planning Act and this Court as well as Supreme Court has time and again held that once the Draft Scheme is sanctioned by the State Government it partakes the character of statute."

Consequently, Justice AJ Desai and Justice Aniruddha P Mayee have refused to grant compensation to the Appellants/Petitioners.

The High Court made these observations while hearing an LPA wherein the Appellants had challenged the CAV judgement by the Single Judge which had refused to grant them compensation under the Town Planning Scheme ('Scheme').

10. SC/ST Act- Anticipatory Bail Can Be Granted If No Prima Facie Offence Is Made Out: Gujarat High Court

Case Title: CHAUDHARY PRAVINBHAI REVABHAI Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 69

The Gujarat High Court has admitted the criminal appeal challenging the quashment of the bail application for offences under Section 323, 332, 504, 506(2) and 114 of IPC and Section 3(2)(5-a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989.

The Bench comprising Justice BN Karia has observed that the Appellant herein had not used any abusive words regarding the caste of the Complainant and was not aware of the caste of the Complainant, either.

11 Right Of Accused U/S 50 Of NDPS Act To Be Searched In Presence Of Magistrate Violated: Gujarat High Court Upholds Order Of Acquittal

Case Title: State Of Gujarat v. Ugamsinh Dhanrajsinh

Citation: 2022 LiveLaw (Guj) 70

The High Court dismissed the appeal of the Appellant-Authorities and confirmed the order of the acquittal by the lower Court on the grounds that the Respondent-Accused was not made aware of his right for being searched before the Magistrate, thereby breaching Section 50 of the NDPS Act.

The Bench comprising Justice SH Vora and Justice Sandeep Bhatt said,

"IO while acting on prior information and before making search of a person, it is imperative for him to inform the respondent-accused about his right to sub-section (1) of Section 50 of the NDPS Act for being taken to the nearest Gazetted Officer or the Magistrate for making search in their presence. It also appears that neither such procedure is followed..."

12. S.25B Industrial Disputes Act | Service Rendered Even Prior To Regularization Needs To Be Considered While Awarding Pensionary Benefits: Gujarat HC

Case Title: RAGHUVERSINH CHANDRASINH SARVAIYA Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 71

"While conferring benefits viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits (from the date of initial appointment as a daily wager)," the High Court affirmed in reference to Section 25B of the Industrial Disputes Act.

The Bench comprising Justice Biren Vaishnav was hearing a Special Civil Application under Article 226 wherein the Petitioner sought direction to Respondent Authorities to consider him as permanent workman and clear arrears of monthly wages, revision of 6^th and 7^th Pay Commission pay-scale benefits along with 12% simple interest per annum.

13. 'Corruption Mothers Disorder': Gujarat High Court Rejects Anticipatory Bail Plea Of Sub-Inspector Allegedly Involved In Bribery

Case Title: Archana Mukesh Raval v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 72

"Corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance", the High Court reiterated.

In observing so, it has refused to grant anticipatory bail under Section 438 of CrPC to the Applicant accused of offences under Sections 384, 114 and 294B and 506(2) of IPC and Sections 7,12,13(1)(a) read with Section 13(2) of the Prevention of Corruption Act 1988.

14. Delay In Concluding Trial A Significant Consideration While Deciding Bail Applications: Gujarat High Court

Case Title: Mohsin Salimbhai Qureshi v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 73

The High Court affirmed that "in deciding the bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial."

Observing thus, the Bench comprising Justice Gita Gopi granted bail to an accused under the Central Goods & Services Act, 2017.

"Here, taking into consideration the course of investigation adopted by the Department, the evidence, so collected, the trial will take considerable time and it may happen, if denied bail, the judicial custody be prolonged beyond the statutory period of punishment which is for five years," it remarked.

15. First Version Of The Story Reliable; Exaggeration May Occur With Passage of Time: Gujarat High Court

Case Title: State Of Gujarat vs Natvarsinh Prabhatsinih Rathod

Citation: 2022 LiveLaw (Guj) 74

"In normal circumstances, we believe that, the first version is showing the true story of the complaint. If the version is changed at the time of deposition, it means there may be exaggeration in the version by passage of time," the High Court opined in connection with a challenge to the acquittal order of the Sessions Court.

It was the Complainant's case that Accused armed with an axe, stick, spear, sharp-edged weapon came to the house of the Complainant and tried to loot a water tanker worth INR 20,000 belonging to the Complainant. When the Complainant tried to prevent them, the Accused got provoked and demolished the household times, beat the family members of the Complainant and threatened to kill them. Accordingly, an FIR was filed under Sections 395, 427, 506(2) and 509 of the Indian Penal Code. Subsequently, during the trial, the prosecution presented 13 witnesses to bring home the charges. However, the trial court, after examining various evidence, acquitted the Accused.

16. 'Active Role' In Instigating Commission of Suicide Essential U/S 306 of IPC: Gujarat High Court Grants Anticipatory Bail To In-Laws

Case Title: Sunilkumar Rajeshwarprasad Sinha v. State Of Gujarat

Citation: 2022 LiveLaw (Guj) 75

"It is settled law that, in order to bring a case within provisions of Section 306 of the IPC, there must be a case of suicide and in commission of the offence, person who is said to have abetted the alleged suicide, must have played an active role by an act of instigating or by doing a certain act to facilitate commission of suicide", the High Court held.

The Bench of Justice Ilesh Vora was hearing an application under Section 438 of CrPC praying for anticipatory bail in connection with an FIR for offences under Sections 306, 498-A and 114 of IPC and Sections 3 and 7 of the Dowry Prohibition Act.

17. Caste Certificate Issued By Taluka Development Officer Is Valid, Not Violative Of Gujarat SC/ST Act 2018: High Court Dismisses PIL

Case Title: Sacha Adivasi Adhikar Trust v. State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 76

The High Court dismissed a PIL challenging a government order which permitted Taluka Development Officer, who is an officer under the Panchayat Department, to issue caste certificates under the Gujarat Scheduled Castes and Scheduled Tribes and other Backward Classes (Regulations of Issuance and Verification of Caste Certificates) Act, 2018.

The petitioner-Trust had challenged the GO stating that caste certificate can be issued only by the Revenue Authorities not below the rank of Mamlatdar. It was argued that by way of the impugned order of the State authorities, there was a dilution of the stringent provisions of law in issuing caste certificates.

18. 240 Days Of Work Essential In Preceding Year Of Termination: Gujarat High Court Denies Relief U/S 25F Of ID Act

Case Title: Chandubhai Punjabhai Talpada v. Deputy Executive Engineer

Case Citation: 2022 LiveLaw (Guj) 77

The High Court has affirmed the order of the Labour Court determining that the Petitioner-workman was not entitled to reinstatement on the ground that there was discrepancy in his deposition and the documents produced by him.

The Petitioner herein had claimed that he had joined the services of the Respondent in 1983 and was performing the duties of the labourer/table work as a daily wager. Since he possessed educational qualifications, he was also given office table work. However, it was alleged by him that he was terminated orally in September 1988 without due process under the Industrial Disputes Act 1947. Aggrieved, he approached the Labour Court which dismissed his application in December 2007.

19. Gujarat High Court Directs State To Consider Regularization Of Contractual Employees Working In Coastal Security Since 11 Yrs

Case Title: Kabindra Satyanarayan Singh v. State of Gujarat thru The Addl. Chief Secretary

Citation: 2022 LiveLaw (Guj) 78

The Gujarat High Court has directed the State authorities to consider regularizing the services of Petitioner-employees, working on contractual basis on interceptor boats for coastal security in the State's Home Department since over 11 years.

The Bench comprising Justice Biren Vaishnav noted that the Petitioners had been recruited, albeit, on a contractual basis, after a public advertisement and a duly constituted selection committee consisting of the Additional Secretary, Law & Order, Director of Sainik Welfare Board, a representative each of the police, navy and coats guard respectively and a Jilla Sainik Kalyan Officer.

20. Gujarat High Court Grants Bail To Rohingya Woman Accused Of Forging Identity Cards; Notes That No Offence Of Forgery Was Made Out

Case Title: Rubina @ Rubi Anwarhusen Sunni (Muslim) Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 79

The Gujarat High Court granted regular bail to a Rohingya woman alleged to have committed offences under Sections 465, 467, 471, 114 of the Indian Penal Code and Sections 3 and 6 of the Passport Act and Sections 13, 14A(a) and 14A(b) of Foreigners Act.

The Applicant had submitted that considering the nature of allegations and the role of the Applicant, it was suitable to be released on bail. Per contra, the Respondent-Authority vehemently contended that the nature of the offence was grave and bail should not be granted.

21. Intention Or Knowledge Essential To Attract Section 307 IPC: Gujarat High Court

Case Title: State Of Gujarat v. Ratniyabhai Nevsingbhai Rathva

Citation: 2022 LiveLaw (Guj) 80

"What is material to attract offense under section 307 of the IPC is the intention or knowledge with which all the acts are done irrespective of its results", the Gujarat High Court has held recently.

Justice Sandeep Bhatt made this observation in connection with a criminal appeal challenging the order of acquittal of the accused for offences under Sections 147 (Rioting), 148 (Rioting, armed with deadly weapon), 149/143 (Unlawful assembly), 307 (Attempt to murder), 323 (Voluntarily causing hurt), 325 (Voluntarily causing grievous hurt), 504 (Intentional insult with intent to provoke breach of the peace) and 506(2) (Criminal intimidation) of the Indian Penal Code.

22. Motor Accident Claim | Offending Driver's Statement Can't Form Part Of Charge-Sheet: Gujarat High Court

Case Title: Reliance General Insurance Company Limited Versus Ashaben Vikrambhai Chauhan

Citation: 2022 LiveLaw (Guj) 81

The Gujarat High Court has held that when proceedings against a driver are instituted for negligence causing a motor accident, then such driver's statements cannot form part of the charge sheet filed against him.

"The copy of charge-sheet filed against the driver of the offending vehicle – Truck and the fact that he is prosecuted in the Court of law, if at all, chargesheet is filed against the driver, his own statement recorded in the said criminal case would never form a part of charge-sheet as it cannot be used against him during the course of trial", Justice Umesh Trivedi opined.

23. Can't Reject Compromise For Compoundable Offence Merely Because Accused Was Also Charged Under SC/ST Act But Acquitted: Gujarat HC

Case Title: Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 82

The Gujarat High Court permitted compounding of offence under Section 323 of IPC, notwithstanding that the accused was also originally charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Bench comprising Justice Ashokkumar Joshi noted that the Court below had acquitted the Petitioners-accused for alleged commission of offences under Sections 504, 506(2), 427 read with 114 of the IPC and Sections 3(1)(x) of the SC/ST Act and no appeal against such acquittal was preferred by the complainant/ State.

24. 'Police Were Swayed By The Fact That They Belong To A Particular Community': Gujarat High Court Orders Probe Into Custodial Torture Of Two Couples

Case Title: Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S)

Citation: 2022 LiveLaw (Guj) 83

The Gujarat High Court has come down heavily on the police for being "swayed by the fact that the Petitioners belong to a particular community" while investigating activities of theft and other wrongs under Sections 328 and 394 of IPC has expressed dismay at the "apathy of the police officials, more particularly senior officers…"

Justice Nikhil Kariel was hearing a special criminal application filed by the Petitioners involving "extreme excess" by the police authorities including senior officers of the level of DySP and SP who were responsible for conducting an impartial inquiry. The Bench noted that the victims, members of a certain community, were earning their living through honest occupation when an FIR was filed against two unknown males and unknown females. According to the inquiry conducted by Respondent No. 6, the Petitioners 1 and 2 (brothers) were passing on a motorbike and were intercepted by the police. When they did not stop, they slipped and were caught by the police. It was observed that the only evidence against the Petitioners was their own confession which was used for submitting the chargesheet. Subsequently, the charges against the Petitioners did not stand during trial.

25. Dispute Prima Facie Of Civil Nature: Gujarat High Court Grants Anticipatory Bail In ₹1,000 Crore Alleged Cheating Case

Case Title: Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat

Case Citation - 2022 LiveLaw (Guj) 84

The Gujarat High Court recently granted anticipatory bail to the Applicants-accused in connection with an alleged case of cheating to the tune of Rs. 1,000 crore.

It was alleged that the applicants had misused terms and conditions of agreement and disbursed only Rs. 9 crore, with object to take over the company and its properties worth approximately Rs.1000 crores.

While allowing the plea for pre-arrest bail filed by the accused charged for alleged commission of offences under Section 120B, 420, 406 and 114 of IPC, Justice Ilesh Vora said,

"prima-facie, it appears that the dispute is purely a civil in nature. The principal accused Bharat Patel is passed away. The applicants have cooperated in the investigation. Whole case is based on documentary evidence and same has been collected by the IO during the course of investigation."

26. Preventive Detention Not Tenable When Other Penal Laws Sufficient To Deal With The Situation: Gujarat High Court

Case Title: Dilip Bhavanishankar Yadav v. State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 85

"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Gujarat Prevention of Anti Social Activities Act, 1985", the Gujarat High Court has opined.

The Bench comprising Justice Rajendra Sareen was hearing a special civil application against the order of detention dated December 2021 against the Petitioner herein under Section 3(2) of the Act.

27. Improper Disposal Of Hazardous Waste: Gujarat HC Grants Bail To Director Of Chemical Company, Says Transporter Liable To Ensure Waste Reaches Treatment Plant

Case Title: Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 86

The Gujarat High Court recently granted bail to the Director of a chemical company, in connection with disposal of the hazardous waste material produced by it in a creek, causing injury to two persons.

The Bench comprising Justice Gita Gopi noted that the company had entered into an agreement with M/S Sangam for transporting the waste material to the treatment plant in accordance to CPCB Co-processing guidelines 2016 and 201. Thus, it held,

"Sangam was authorised to provide the work of collection, transportation of hazardous waste material to Dalmia Cement Bharat Limited plants at Odhisa, Karnataka and Bihar, and the authorisation for transportation of hazardous waste materials was in accordance to CPCB Co-processing guidelines 2016 and 2017, and therefore, it would be the responsibility of the transporter to take waste by-products to its destination. The petitioner company or the petitioner himself would have no knowledge of any misdeed of the transporter. The liability would lie on the company who engages the transporter and it is the duty of the transporter to see that the said waste product reaches plant or to its destination."

28. Pregnancy Caused By Rape May Constitute Lifelong Mental Agony, Pose Socio-Economic Problems: Gujarat High Court Grants Relief To Minor

Case Title: A B C (Victim) vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 87

The Gujarat High Court recently allowed the plea of a minor rape victim to terminate her 6 weeks old pregnancy, on the ground that if pregnancy continues, it would cause lifelong mental agony to the her coupled with socio-economic problems.

"Petitioner is pregnant because of forcible rape by the accused...because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor – victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman."

29. Appellate Court Can't Interfere With Interim Order Unless Trial Court Did Not Consider Material In Proper Perspective/ Misdirected Itself: Gujarat HC

Case Title: Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi

Case Citation: 2022 LiveLaw (Guj) 88

Affirming the settled law that Appellate Courts must not disturb the discretionary order of the Trial Court at interim stage even if second view of the matter is possible, the Gujarat High Court has allowed an appeal challenging lower court's order declining to grant interim injunction in respect of a construction, allegedly interfering with Appellant's easementary rights.

The Bench of Justice AP Thaker ordered status quo with respect to the construction towards the eastern wall of the Plaintiff's residence till both the parties lead their evidence in support of their claim and counter-claim. It said,

"Prima facie, it appears that the plaintiffs have put up this construction in his own land keeping certain portion of land open for common wall. Now, on perusal of the Photograph produced in the matter, it clearly appears that the constructions of the defendant is completely adjacent with the wall of the plaintiffs. At this juncture, it is also pertaining to note that defendant has also filed counter claim for closure of the window and balcony of the plaintiffs which is on the eastern side wall of the property of the plaintiff. Thus, prima-facie it appears that when suit was filed there was no construction, obstructing the window and balcony of the plaintiff's property on the eastern side. Now, there is allegation and counter allegation, regarding the easementary right as well as regarding illegal construction and there is also counter claim for removal of window and balcony. Under these facts and circumstances, it is necessary that status-quo be maintained till both the parties lead their evidence in support of their claim and counter-claim."

30. "Public Organisations Must-Have Regard For Livelihood Of Persons In Armed Forces": Gujarat HC Imposes INR 50,000 Fine On ONGC For Exclusion Of Ex-serviceman From Job post

Case Title: Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person

Citation: 2022 LiveLaw (Guj) 89

The Gujarat High Court has imposed a fine of INR 50,000 on Oil and Natural Gas Corporation Limited while holding as follows;

"since it prima facie appears that the exclusion of the petitioner was not by an accident and further, in any case, the respondent organization, more particularly, being a Public Sector Undertaking under the Government of India was required to act fairly, more particularly, while considering the candidature of an Ex-Servicemen candidate, which the respondents have not done, hence this is a fit case for imposition of costs. Thus, costs quantified at Rs. 50,000/- (fifty thousand) is also directed to be paid by the respondents to the present petitioner."

31. Department Cannot Block GST ITC Without Assigning Any Reason: Gujarat High Court

Case Title: M/s New Nalbandh Traders Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 90

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the department cannot block the Input Tax Credit (ITC) without assigning any reason to the assessee.

The writ petitioner/assessee, a proprietary concern, is in the business of trading in M.S. scrap for the past 13 years. The proprietary firm purchases the scraps from different suppliers and sells them to different entities.

32. Gujarat High Court Distinguished Between 'Public Order' And 'Law And Order'; Releases Detenue Under NDPS Act

Case Title: Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police

Citation: 2022 LiveLaw (Guj) 91

"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act," the Gujarat High Court has upheld today.

Justice AP Thaker was hearing a petition against the detention of the Petitioner by the Respondent authorities under Section 3(2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988.

33. Employee Can't Be Terminated From Service Despite Conviction By Court In Absence Of Show Cause Notice & Opportunity To Reply: Gujarat High Court

Case Title: Ramsingbhai Saburbhai Patel vs State Of Gujarat

Case No.: 2022 LiveLaw (Guj) 92

The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.

The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with consequential benefits and backwages. However, liberty is granted to pass appropriate order afresh in accordance with law after giving an opportunity of hearing to the petitioner and considering the reply which may be filed.

34. Wife Of Accused Had No Knowledge Of Contraband, No Conscious Possession: Gujarat High Court Upholds Acquittal Under NDPS Act

Case Title: Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 93

The Gujarat High Court has affirmed the acquittal of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, on the ground that she was merely accompanying her husband and had no knowledge of contraband being carried in the bag.

The Bench comprising Justice SH Vora remarked that her conscious possession as understood under the law does not surface even a reasonable doubt.

The development ensued in a State-appeal, preferred against the order of Special Judge, acquitting the Accused No. 2 (wife of accused no. 1) for offences under Sections 8(c), 20(b) and 29 of the NDPS Act.

35. Probate Shall Be Granted Only To An Executor Appointed By The Will: Gujarat High Court

Case Title: Mahendra Harilal Parekh vs Meenaben Hirenbhai Parekh

Citation: 2022 LiveLaw (Guj) 94

The Bench comprising Justice Ashokkumar Joshi of the Gujarat High Court has been hearing an Article 227 petition challenging the order of the Trial Judge pertaining to an application under Order 6 Rule 17 of CPC.

The brief facts of the case were that the deceased mother of the Petitioners/Appellants was the owner of certain movable and immovable properties and had executed a will in 2013 in favour of the Petitioners/Appellants. Subsequent to the death of the mother, the Petitioners became owners of the properties and preferred an application seeking the probate of the will while the Trial Judge invited objections against the application.

The Respondent therein filed an objection against the issuance of probate in favour of the Petitioners. The Petitioners therefore preferred the application in question in 2016 seeking amendment of probate application praying for the replacement of the word Probate by Letter of Administration. This application was rejected and hence the petition was filed.

36. Fraudulent Claim of ITC, Revenue Interest is Protected by Attachment: Gujarat High Court Grants Bail

Case Title: Niraj Jaidev Arya Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 95

The Gujarat High Court bench of Justice Gita Gopi has granted bail to the accused of fraudulently availing the input tax credit (ITC) as the department has attached the immovable properties, which were much beyond the alleged GST evasion.

The applicant, a designated partner and managing director of "Utkarsh Ispat LLP," which is in the business of purchasing mild steel scrap and, thereafter, converting it into mild steel billet. The department conducted a search and seizure operation at the factory and office premises of the LLP and at the residence of the applicant on the ground that several purchase transactions had been made from fictitious entities.

37. Gujarat High Court Grants Interim Injunction On Immovable Property Based On 'Agreement To Sell'

Case Title: Gitaben Govindbhai Patel vs Rameshbhai Hirabhai Patel

Citation: 2022 LiveLaw (Guj) 96

The Gujarat High Court ordered interim injunction on an immovable property and restrained its owner from changing its status during the pendency of the suit, based on an agreement to sell arrived at between the parties.

The Bench comprising Justice AP Thaker observed,

"So far as the suit based on agreement to sell for specific performance of contract, even if that agreement to sell is not registered, same can be considered for collateral purpose... If there is contract of agreement to sell and the same is not refused by the defendant and further when legal notice has been issued to the defendant for purpose of that contract, if no injunction is granted in favour of the plaintiff, then, there might be multiplicity of litigation in case defendant transfers the property during the pendency of the litigation."

38. Registration Of FIR By Itself Can't Have Any Nexus With Breach Of Maintenance Of Public Order: Gujarat High Court

Case title - Mohsinkhan Muso Murajkhan v. Directorate General Of Police

Citation: 2022 LiveLaw (Guj) 97

Quashing a detention order passed u/s 3 (2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act], the Gujarat High Court on Tuesday observed that simpliciter registration of FIR by itself cannot have any nexus with the breach of maintenance of public order.

With this, the Bench of Justice A. P. Thaker ALLOWED the plea moved by detenue Mohsinkhan and QUASHED the impugned order of detention (dated 29.11.2021) passed by the respondent – detaining.

39. Prima Facie Case, Balance Of Convenience, Irreparable Injury, Three Pillars Of Injunction Order: Gujarat High Court

Case Title: Chandra Darshan Developers Through Partner Versus Hiralal Gopalbhai

Citation: 2022 LiveLaw (Guj) 98

"The object of the interlocutory injunction, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial", the Gujarat High Court has opined.

The Bench comprising Justice AP Thaker was considering an appeal under Order 43 Rule 1(r) against the order passed by the Magistrate Court in a Special Civil Suit restricting the Defendants (Appellants, herein) from selling, transferring, mortgaging or passing any interest to third party in the suit property.

40. Dealer's GST Registration Can't Be Cancelled For Inadvertent Mistake Of CA: Gujarat High Court

Case Title: M/s Dilipkumar Chandulal Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 99

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has ruled that the dealer should not be forced to pay a hefty price for the cancellation of the GST registration for the chartered accountant's mistake.

The writ was against the the cancellation of the GST registration. The chartered accountant of the assessee wanted the HUF registration to be cancelled. Instead of inserting the registration number of the HUF, inadvertently, the CA inserted the registration number of the proprietorship. In such circumstances, the registration of the proprietary firm under the GST was cancelled.

41. Abetment Of Suicide | "Positive Act" Of Instigation Necessary For Conviction U/S 306 IPC: Gujarat High Court Reiterates

Case Title: STATE OF GUJARAT Versus RAVAL DEEPAKKKUMAR SHANKERCHAND & 2 other(s)

Case Citation: 2022 LiveLaw (Guj) 100

The Gujarat High Court has reiterated that without a positive act on the part of the accused to instigate or aid in committing suicide, conviction under Section 306 of the Indian Penal Code cannot be sustained.

"The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide."

42. Attachment of Immovable Properties Of Director Despite settlement of Tax Dues Under Tax Resolution Scheme: Gujarat High Court Condemns Dept.

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

Citation: 2022 LiveLaw (Guj) 101

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has condemned the act of the department for attaching the personal immovable properties of the director even though the tax dues were settled under the Tax Resolution Scheme.

The writ-petitioner/assessee, a company which is a taxable entity, has incurred liability towards the payment of tax under the provisions of the GVAT Act. The company incurred a liability in the year 2013. The company preferred an application under the "Vera Samadhan Yojana, 2019". An application was filed on November 6th, 2019. In accordance with the scheme, the company was required to pay an amount, and upon deposit of the amount, the interest to the tune of Rs.60,53,560 was waived. The company deposited the amount under the scheme and discharged its total liability.