Gujarat High Court Weekly Round Up: July 4 To July 10, 2022

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

ORDERS/JUDGMENTS OF THE WEEK

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."