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Gujarat High Court Weekly Round Up: May 9 To May 15, 2022

Sparsh Upadhyay
16 May 2022 3:06 AM GMT
Gujarat High Court Weekly Round Up: May 9 To May 15, 2022
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NOMINAL INDEX Bajaj Finance Ltd. Through Authorised Officer, Aniket Pareshbhai Desai versus Ld. District Collector, Navsari & 1 other(s) Citation: 2022 LiveLaw (Guj) 154 Vijay Arvind Jariwala Versus Umang Jatin Gandhi Citation: 2022 LiveLaw (Guj) 155 Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 156 Parekh...

NOMINAL INDEX

Bajaj Finance Ltd. Through Authorised Officer, Aniket Pareshbhai Desai versus Ld. District Collector, Navsari & 1 other(s) Citation: 2022 LiveLaw (Guj) 154

Vijay Arvind Jariwala Versus Umang Jatin Gandhi Citation: 2022 LiveLaw (Guj) 155

Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S) 2022 LiveLaw (Guj) 156

Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat 2022 LiveLaw (Guj) 157

Dhabriya Polywood Limited Vs Union of India 2022 LiveLaw (Guj) 158

Principal Commissioner Versus Reliance Industries 2022 LiveLaw (Guj) 159

Vasaya Yunusali Alarakhabhai Versus State Of Gujarat 2022 LiveLaw (Guj) 160

Harshad D Santoki S/O Devjibhai Versus State Of Gujarat 2022 LiveLaw (Guj) 161

Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s) 2022 LiveLaw (Guj) 162

Nathiben Lalitbhai Vegada Versus State Of Gujarat 2022 LiveLaw (Guj) 163

Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat 2022 LiveLaw (Guj) 164

Leepee Enterprise versus Mehul Industries 2022 LiveLaw (Guj) 165

Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S) 2022 LiveLaw (Guj) 166

Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala 2022 LiveLaw (Guj) 167

Orders/Judgments of the week

District Magistrate Not Vested With Adjudicatory Powers U/S 14 SARFAESI Act, Can Only Render Ministerial Assistance To Creditors: Gujarat High Court

Case Title: bajaj finance ltd. Through authorised officer, aniket pareshbhai desai versus ld. District collector, navsari & 1 other(s)

Citation: 2022 LiveLaw (Guj) 154

Explaining that under Section 26E of the SARFAESI Act, the secured creditor has the first claim over the sale proceeds of secured assets and that the District Magistrate has to provide assistance under Section 14 to the secured creditor to take possession of the asset, the Gujarat High Court has quashed a communication which prohibited the Petitioner-bank from proceedings against the borrower-company.

Can Third Parties To An Arbitration Agreement Be Impleaded As Parties In Proceedings U/S 9 Arbitration Act?: Gujarat High Court Answers

Case Title: Vijay Arvind Jariwala Versus Umang Jatin Gandhi

Citation: 2022 LiveLaw (Guj) 155

"In the proceedings of section 11, a person who is not a party to the agreement, has no association in eye of law. On the same footing, a third party cannot be a party in the proceedings under section 9 of the Act for interim measures wherein by very nature of the proceedings, third party cannot be said to have a legal participatory right", the Gujarat High Court has recently observed.

The Bench comprising Justice NV Anjaria and Justice Samir Davehas been hearing an application under Section 9 of the Arbitration and Conciliation Act, 1996. The application was filed by one partner of a partnership firm (Blue Feathers Infracon) against the other wherein the Petitioner filed the interim application to implead a retired partner of the firm and his wife as respondent parties.

Sample Analysis Report Of Central Insecticides Lab U/S 24(4) Of Insecticides Act Is 'Conclusive Evidence': Gujarat High Court

Case Title: Godrej Agrovet Limited & 1 Other(S) Versus State Of Gujarat & 1 Other(S)

Citation: 2022 LiveLaw (Guj) 156

The Gujarat High Court has held that the sample analysis report received from the Central Insecticides Laboratory under Section 24(4) of the Insecticides Act, 1968 is a 'conclusive proof' of facts involved.

Section 24(4) makes provision for a sampel to be sent for test or analysis to the Central Insecticides Laboratory, which shall file its report within 30 days, in writing, signed by or under the authority of the Director of the Laboratory and the report shall be conclusive evidence of the facts stated therein.

Gujarat High Court Directs Wife To Pay ₹10K To Husband As She Deserted Him Over Difference In Their Sub-Castes

Case title - Parekh Jaisalkumar Vinodbhai Versus State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 157

The High Court directed a woman who deserted her husband under the influence of her family on the ground that he belongs to a different sub casere, to pay Rs. 10,000/- to her husband.

"We find it extremely unfortunate that the educated couple needs to end the relationship in such a fashion just because there is a strong resistance on the part of the parents and taken in exert this kind of influence," the Bench of Justice Sonia Gokani and Justice Mauna Bhatt remarked.

Bonafide Mistake In Selection Of Wrong ODC Vehicle Type While Generating E-Way Bill: Gujarat High Court Quashes Detention Order

Case Title: Dhabriya Polywood Limited Vs Union of India

Citation: 2022 LiveLaw (Guj) 158

The High Court has quashed the detention order as there was a bonafide mistake in the selection of the wrong ODC vehicle type while generating the e-way bill.

The division bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thakore observed that the goods were in transit with all the necessary documents, including the E-way bill generated from the GST portal. The goods were moved by a truck whose registration number was also correct. The only mistake in this case was the selection of the wrong ODC vehicle type while generating the e-Way Bill.

Methanol Arises As A Result Of Chemical Reaction And Not As A By- Product, No Excise Duty Payable: Gujarat High Court

Case Title: Principal Commissioner Versus Reliance Industries

Citation: 2022 LiveLaw (Guj) 159

The High Court bench of Justice J.B. Pardiwala (as then was) and Justice Nisha M. Thankore has held that methanol is not excisable as it is a result of a chemical reaction and not as a result of any by-product.

The respondent-assessee, Reliance Industries, is in the business of manufacturing excisable goods like Motor Spirit, High Speed Diesel, LPG etc. It is the case of the appellant that the respondent has been availing credit of duty paid on the input and capital goods and input services in terms of the provisions of the CENVAT Credit Rules, 2004. The refund claim was made in respect of the CENVAT Credit Reversed or Paid under Rule 6(3) of the CENVAT Credit Rules, 2004 for the period between April, 2015 and March, 2016 on the removal of the LPG under the Domestic Subsidy Scheme

Police Atrocities| Gujarat High Court Urges State To Install CCTV Cameras, Follow DK Basu Guidelines

Case Title: Vasaya Yunusali Alarakhabhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 160

The High Court recently recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region.

A Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case.

Can't Deny Academic Grade Pay To An Asst. Professor Citing 'Adverse Remarks' For A Brief Period: Gujarat High Court

Case Title: Harshad D Santoki S/O Devjibhai Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 161

In a major relief to an Assistant Professor at the Industrial Engineering Department of LE College, Morbi, the Gujarat High Court has directed the respondent authorities to grant him an Academic Grade Pay (AGP) of Rs. 8,000 from 2010 onwards and consequential benefits of INR 9,000 from 2013.

Justice Vaishnav noted that except for certain adverse remarks from 2009-10, there were no adverse remarks against the Petitioner in the 19 years of service that he had rendered. The issue of unauthorised pay was an aspect of penalty even as the other remarks regarding his ability to decisions or lack of initiative were not so grave so as to deprive him of the AGP. The High Court remarked:

"For these two purported adverse instances the financial loss that has occurred to the petitioner is denial of AGPs consequentially based on the communication of 2019."

'No Misuse Of Liberty Or Violation Of Bail Conditions': Gujarat High Court Explains Law On Cancellation Of Anticipatory Bail

Case Title: Shree Vikas Co.Op. Bank ltd, (liq.) Through Sunil Laxmanrao Powle v. State Of Gujarat & 2 Other(s)

Citation: 2022 LiveLaw (Guj) 162

The Gujarat High Court Bench comprising Justice Ashutosh Shastri recently dismissed an application seeking cancellation of bail while noting that there was no violation of any bail conditions or misuse of liberty could be made out against the accused persons.

There were 20 FIRs registered against the Accused persons for offences punishable under Sections 409, 420, 467, 468, 471, 114, 34 and 120(B) of the IPC. The main accused person in these FIRs being the Vice-Chairman of the Shree Vikas Cooperative Bank Limited ('Applicant Bank') was accused of having sanctioned different loans for his relatives without proper security even as the relatives failed to repay the loan with interest in due time.

'No Positive Material': Gujarat High Court Refuses To Exercise Contempt Jurisdiction In Case Involving False Allegations Of Police Brutality

Case Title: Nathiben Lalitbhai Vegada Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 163

"It is trite law that initiation of contempt proceedings is a serious step; same cannot be exercised in a routine manner. Unless there is a definite material and clear case made out, this Court would refuse to exercise contempt jurisdiction", the Gujarat High Court has held while dismissing a false application filed under Section 10 of the Contempt of Courts Act by the applicant through her sister (minor).

The Applicant herein had approached the Court to initiate contempt proceedings against the State authorities for the wilful and deliberate disobedience of the guidelines laid down by the Supreme Court in DK Basu vs State of West Bengal for the alleged physical abuse endured by her sister and herself.

It was averred that the an Activa vehicle belonging to the employee of the Applicant's sister was detained by the traffic police. On the subsequent payment of the fine, the sister reached the police station to take possession of the vehicle along with the Applicant wherein the authorities delivered blows on them resulting in serious injuries. After being admitted to the hospital, the Applicant claimed that an FIR was lodged against them along with two other Accused persons for offences under Section 447, 379 and 114 of the IPC. The Applicant insisted that no theft or trespass was committed by her.

Gujarat HC Grants Custody Of 4-Yr-Old To Mother In Writ Jurisdiction, Suspends Father's Visitation Rights For 6 Months Citing Unruly Behaviour

Case Title: Panchal Zalakben Hardikbhai D/O Sanjaybhai Bhagubhai Panchal Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 164

Considering the well settled principle of paramount welfare of child, the Gujarat High Court recently exercised its extraordinary powers under Section 226 of the Constitution and granted custody of the corpus, a 4 old year boy, to his mother (Petitioner herein).

The child was said to be taken away from the mother by the child's father, following a matrimonial dispute. After the judgment was pronounced in Petitioner's favour, the Bench comprising Justices Sonia Gokani and Mauna M Bhatt noted the father's attempt to create an unruly atmosphere in the Court. Thus, it suspended his visitation rights for a period of six months.

"We allow this petition giving the custody of child to the mother. Let the same be handed-over peacefully to the mother...the father would have visitation right...After the judgement was pronounced, respondent-father of the child tried to create unruly atmosphere in the Court premise leading to unmanageable situation for Campus Administration. His intimidating behaviour make us suspend the visitation rights for six months from today," the order stated.

Party Failing To Raise The Issue Of Jurisdiction At Section 11 Notice Stage Or During The Arbitral Proceedings, Ground Not Available Under Section 34: Gujarat High Court

Case Title: Leepee Enterprise versus Mehul Industries

Citation: 2022 LiveLaw (Guj) 165

The High Court has ruled that the issue of jurisdiction of the Arbitrator ought to be raised at the first available opportunity, i.e., when the notice under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) is served for appointment of Arbitrator.

The Single Bench of Justice A.G. Uraizee rejected the contention that the issue of jurisdiction being a legal issue can be raised at any stage. The Court held that since the party had not raised the issue of lack of jurisdiction of the Arbitrator by responding to the notice issued under Section 11 of the A&C Act nor had it participated in the arbitral proceedings to raise the said issue, the arbitral award could not be set aside on the ground of lack of jurisdiction of the Arbitrator.

No Untoward Incident Has Occured: Gujarat High Court Dismisses Plea For Cancellation Of Bail Of Accused Under SC/ST Act

Case Title: Vijaybhai Punabhai Chavda Versus State Of Gujarat & 13 Other(S)

Citation: 2022 LiveLaw (Guj) 166

Observing that no untoward incident has taken place since the persons accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were released on bail, the Gujarat High Court has refused to entertain an application preferred by the complainant for cancellation of bail.

Bench comprising Justice Ashutosh Shastri observed,

"Trial is already set on motion and the case has already been fixed on 20.6.2022, and further, there is no untoward incident has taken place after June 2017 nor any case is made out of breach of any of the conditions of grant of bail, hence this Court is not inclined to exercise discretion to cancel the bail which has been granted."

Gujarat High Court Sets Aside Injunction Passed By State Waqf Tribunal On Construction Of Railway Tracks Near Dargah

Case Title: Chief Project Manager Versus Firoz Saheb Dargah Through Trustee Shaikh Onali Ismailji Visawaarvala

Citation: 2022 LiveLaw (Guj) 167

The High Court held that merely because a Dargah is situated in a railway land and not disturbed or removed because of its devotees and followers, does not mean that the surrounding land of the Dargah becomes the Dargah's property.

Observing thus, the Bench comprising Justice Umesh Trivedi set aside an order of the State Waqf Tribunal which granted injunction in favour of the Trustee of the concerned Dargah, halting the construction of railway line near the Dargah.

Weekly updates from the High Court

Khambat Communal Riots| Victims Move Gujarat High Court Seeking Transfer Of Investigation To CID

The victims of communal Violence at Khambhat have moved the Gujarat High Court seeking a transfer of investigation to State CID citing that the police showed its religious bias and that police, directly and indirectly, encouraged the mob.

The petition seeks the court's intervention "to initiate departmental, civil and criminal action against erring officers responsible for non-transparent, unfair, discriminatory treatment in connection with both the FIRs.".

They state that pursuant to the Ram Navmi procession and the Shobha Yatra several incidents of looting and burning of the private properties, houses, shops and other places took place causing substantial damage of irreversible nature. Religious places were also consciously and deliberately damaged. It is said that the petitioners are victims of the communal violence and have suffered on account of looting and burning of their houses and their shops.

Senior Advocate Yatin Oza Extends Apology To Justice RM Chhaya For Remarks Made Against Him

While congratulating Justice RM Chhaya over his proposed elevation as the Chief Justice of Gauhati High Court, Senior Advocate Yatin Oza, in a letter written to Justice Chhaya, has apologized for his 'remarks' made against him in June 2020.

It may be noted that as of now, there has been no 'official' communication regarding the recommendation made by the Supreme Court Collegium to elevate Justice Chhaya as the Chief Justice of Gauhati High Court. However, several reports have made claims in this regard.

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