Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav, J., reiterated that, interest on delayed payment of gratuity is mandatory and not discretionary.

The petitioner had prayed for a declaration that the respondent’s action in not paying the entire amount of Rs 10 lakhs towards gratuity to the petitioner was arbitrary. Hence, a direction was sought that respondents be directed to pay the remaining amount of gratuity to the petitioner along with 18% interest from the date of his retirement.

Analysis and Decision


High Court expressed that, in the Supreme Court decision of H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd., (2003) 3 SCC 40, it was decided that the interest on delayed payment of gratuity is mandatory and not discretionary. When it is not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground, the respondent had been directed to pay interest @ 10% on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. 

Hence, Bench stated that the present case was covered by the Supreme Court’s decision as stated above.

Therefore, Court directed the respondents to pay the petitioner the amount of gratuity of Rs 10 lakhs within a period of 10 weeks, and since the petitioner was superannuated in 2013 and the gratuity amount had been wrongfully withheld, the petitioner shall be entitled to interest at the rate of 9% from the date of his superannuation till the date of actual payment. [Ashvinkumar Ramniklal Jani v. State of Gujarat, 2022 SCC OnLine Guj 575, decided on 19-4-2022]


Advocates before the Court:

MR JAYRAJ CHAUHAN(2966) for the Petitioner(s) No. 1

MR MUKESH N VAIDYA(5197) for the Petitioner(s) No. 1

MR MUKUND M DESAI(286) for the Petitioner(s) No. 1

MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3

NOTICE SERVED BY DS for the Respondent(s) No. 4

Appointments & TransfersNews

President appoints Justice Sudhanshu Dhulia, Chief Justice of the Gauhati High Court and Justice Jamshed Burjor Pardiwala, Judge of the Gujarat High Court to be Judges of the Supreme Court of India.


Ministry of Law and Justice

[Notification dt. 7-5-2022]

Appointments & TransfersNews

Supreme Court Collegium has recommended the elevation of the following Chief Justice / Judge of the High Courts, as Judges in the Supreme Court:

1. Mr Justice Sudhanshu Dhulia, Chief Justice, Gauhati High Court, (PHC: Uttarakhand); and

2. Mr Justice J.B. Pardiwala, Judge, Gujarat High Court


Supreme Court Collegium

[Statement dt. 5-5-2022]

Case BriefsHigh Courts

In 2013, Gujarat High Court addressed a case wherein a son audaciously suggested that his parents should move to and stay in an old-age home instead of claiming an order of “care, protection and maintenance”.

The petitioner who was the father along with his wife used to live in the village and were not keeping well, health-wise, hence they claimed in the Court that their son shall be directed to provide proper maintenance, care and protection.

Father alleged that his younger son does not help him and his wife in any manner and he also does not provide for their maintenance.

From the opposing application, it emerged that the expenditure towards medicines of the applicant and his wife were being reimbursed, however, the applicant had emphatically denied and asserted that the said expenses are not being reimbursed and he has to meet with all expenses including the expenditure towards medicines for himself and his wife out of his pension-amount and he does not have any other income/source of income except pension.

It was not in dispute that the respondent does not stay with his parents and from the material on record it does not come out that he is extending any care or help to his parents and/or he does not provide for, or does not even contribute anything for, their maintenance.

High Court noted that the father does not receive any monetary help from his children and he does not have any other income to maintain himself and his wife to meet with their regular domestic expenses as well as the expenditure towards their medicines.

Additionally, the Court expressed that the applicant and his wife do not get any physical or emotional care, protection and support or any monetary help from their two children and their families.

Section 4 of the Act prescribes that the obligation of the children or the relative to maintain parent or senior citizen extends to the “needs” or parent’s or senior citizens so that he/they may lad a “normal life” and the conferment of the right to claim maintenance under the Act is not restricted qua only biological or adopted children but it is also extended, in specified cases, qua relative/s as well.

The above-said obligation was not restricted only to provide bare minimum maintenance, but the Act imposes obligation to also provide “all needs” of such citizen so that he may lead a “normal life” and to also provide food, clothing, residence, medical attendance and treatment.

The above-said expression ‘lead normal life’ would include all requirements of parents, i.e., physical needs as well as emotional needs.

It is pertinent that the pecuniary limit as regards the amount which can be awarded as maintenance allowance does not regulate the provision under section 4 of the Act and the provision under section 4 of the Act is not dependent on section 9 or pecuniary limit prescribed by the Rule 5 of the said Rules. It is neither the scope nor effect nor object of section 9 to regulate and/or restrict the scope or operation of Section 4 of the Act.

Parents’ right to Maintenance

High Court expressed that,

The right of the parent or senior citizen to make an application for maintenance, if such parent or senior citizen is not able to maintain himself from his own earning cannot be denied/taken away or curtailed by applying and superimposing the pecuniary limit prescribed for the purpose of Section 9 of the Act.

Further, with regard to awarding more amount, Court held that the applicant has to satisfy the competent authority that having regard to his requirements to lead a normal life as contemplated under Section 4 of the Act, his income is insufficient and he needs more amount/assistance from his children so that he can maintain himself and lead a normal life.

“…merely because, income of the applicant appears to be more than the pecuniary limit prescribed for the purpose of section 9 of the Act, the authority cannot refuse to entertain and decide an application and pass appropriate order.”

The petition was accepted and allowed.[Parmar Dahyabhai Hemabhai v. Parmar Prakashbhai Dahyabhai, 2013 SCC OnLine Guj 749, decided on 4-3-2013]


Advocates before the Court:

MR YH MOTIRAMANI, ADVOCATE for the Petitioner(s) No. 1
MS E.SHAILAJA, ADVOCATE for the Respondent(s) No. 1

Know thy Judge

“There should be effort to find out cases where there is possibility of settlement of cases…Serious thinking on ADR is required.”

                                                                                       Justice R. Subhash Reddy[1]


As Justice Ramayyagari Subhash Reddy prepares to bid adieu, we endeavor to take you to a trip down the memory lane of his tenure in the Supreme Court.


Travelling Back in Time 


Justice R. Subhash Reddy was born on 5th January, 1957 in an agricultural family in Kamaram Village of Chinna Shankarampet Mandal, Medak District. He did his primary education in Upper Primary School and Higher Education from Zilla Parishad High School, Sankarampet, and graduation from Andhra Vidyalaya College, Hyderabad and obtained his Degree in Law from the University College of Law, Osmania University, Hyderabad.[2]

♦Did You Know? Justice R. Subhash Reddy has deep interest in matters of philosophy, culture, music and education.[3]                                    


Career at a Glance    


              

Advocate- 1980-2002 

Justice Reddy enrolled as an advocate on 30-10-1980 in Bar Council of Andhra Pradesh and joined the Chambers of Sri Justice B. Subhashan Reddy. Post enrolment, Justice Reddy practised at Andhra Pradesh High Court, Civil Court Tribunals and Supreme Court.  

Justice Reddy’s stint as an advocate stretched over a staggering period of 22 years during which he argued on issues related to Civil, Criminal, Constitutional, Revenue, Taxation, Labour, Company and Service matters in both original and appellate side. His specialisation however was in Constitutional Law.[4] Justice Subhash Reddy was also elected unanimously as the President of the AP High Court Advocates Association for the year 2001-2002.[5]

♦Did you Know? He was Standing Counsel for premier institutions like S.V. University and Jawaharlal Nehru Technological University.[6]

The High Courts- Elevation as a Judge- 2002-2018 

On 2nd February, 2002, Justice Reddy was elevated as an Additional Judge of the Andhra Pradesh High Court and sworn in as Judge of the Andhra Pradesh High Court on 24-06-2004. He was later elevated as Chief Justice of Gujarat High Court on 13th February, 2016.[7]


Notable High Court Decisions  


Andhra Pradesh High Court/ Hyderabad High Court

A.P. Civil Liberties Committee (APCLC) v. Govt. of A.P., 2009 SCC OnLine AP 50 

The 5 Judge Bench of Goda Raghuram, V.V.S. Rao, R. Subhash Reddy, Ramesh Ranghanathan and G. Bhavani Prasad, JJ., held that where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be, the first information relating to such circumstance (even when by a Police/Public Official; whether an alleged perpetrator is named or not) shall be recorded and registered as FIR, enumerating the relevant provisions of Law, (u/Sec. 154(1) Cr.P.C.) and shall be investigated (u/Sec. 156/157 Cr.P.C.).

K. Swarna Kumari v. Government of Andhra Pradesh, 2006 SCC OnLine AP 97

Re. Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, Rules 20(4) and 45(1) proviso, Full Bench of the Court comprising of T. Meena Kumari, A. Gopal Reddy, Goda Raghuram, T.CH. Surya Rao and R. Subhash Reddy, JJ., held, violation of principles of natural justice by itself is not sufficient to invalidate punishment unless a clear prejudice suffered thereby is pleaded and demonstrated.  

Gangaraju Sowmini (Dr.) v. Alavala Sudhakar Reddy, 2016 SCC OnLine Hyd 430 

The 3-Judge Bench of Before R. Subhash Reddy, G. Chandraiah and Nooty Ramamohana Rao, JJ., held that as per the language under Section 166 of the Motor Vehicles Act, 1988 r/w. Rule 2(g) of the A.P. Motor Vehicles Rules, 1989, even the legal representatives who are non-dependants can also lay a claim for payment of compensation by making application under Section 166 of the Motor Vehicles Act.

Gujarat High Court 

Bar Council of Gujarat v. Jalpa Pradeepbhai Desai, 2016 SCC OnLine Guj 5080 

While dismissing an appeal filed by a respondent petitioner who applied for a certificate of practice to the Bar Council of Gujarat while simultaneously rendering services at a corporation, the Division Bench of R. Subhash Reddy, CJ and Vipul M. Pancholi, J said that an advocate who works as a full-time salaried employee of any person, government, firm, corporation or concern, is not entitled to grant of certificate of practice under the Advocates Act, 1961 in view of Rule 49 of the Bar Council of India Rules.

Read More


Prati Shailesh Patel v. State of Gujarat, 2016 SCC OnLine Guj 1909 

While dealing with the constitutionality of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Ordinance, 2016, the bench comprising of R. Subhash Reddy, CJ and Vipul M. Pancholi, J. quashed the Ordinance to the extent of removing genuine NRI/NRI proper i.e. children or wards of the Non-Resident Indian from the quota in medical colleges.

Read More


Dayaram Khemkaran Verma v. State of Gujarat, 2016 SCC OnLine Guj 1821

While dealing with the constitutionality of the Gujarat Unreserved Economically Weaker Sections (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in services under the State) Ordinance, 2016 providing reservation of seats in the educational institutions in the State and of appointments and posts in the services under the State in favour of the Economically Weaker Sections of unreserved categories, the bench comprising of R. Subhash Reddy CJ., and Vipul M. Pancholi, J. held the Ordinance unconstitutional and contrary to fundamental rights.

Read More                                 


THE SUPREME COURT- 2018-2022


On 1st November, 2018, the Ministry of Law and Justice notified the appointment of Justice R. Subhash Reddy to the Supreme Court of India by the President[8] and on 2nd November, 2018, Justice Reddy assumed charge of his office as a Judge of Supreme Court.[9]

♦Did You Know? Justice Reddy is the first Judge from the newly carved State of Telangana to become a Judge of the Supreme Court.[10] 


 Notable Judgments 


Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 2 SCC 52 

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be refered to a larger bench in its Review jurisdiction.

Read More


Shah Faesal v. Union of India, (2020) 4 SCC 1 

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that-

Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

Read More 


Foundation for Media Professionals v. UT of J&K, (2020) 5 SCC 746

“National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles.” 

A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai JJ., observed that

While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a world wide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored.” 

and directed the constitution of a Special Committee comprising Secretaries of the Union Ministry of Home Affairs and Department of Communications, Ministry of Communications and the Chief Secretary of Jammu & Kashmir to review 4G connectivity in Jammu & Kashmir as 2G service available in the Union Territory is not sufficient for education and business purposes.

Read More…


Rajnesh v. Neha, (2021) 2 SCC 324, 

The Bench of Indu Malhotra and R. Subhash Reddy, JJ., framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read More


R. Natarajan v. State of T.N., (2021) 7 SCC 204

In an appeal regarding dowry death case the Division Bench of Navin Sinha and R. Subhash Reddy, JJ., granted acquittal to an old aged couple. Opining that the Courts below had failed to consider the evidences available on the standard of “beyond reasonable doubt” The Bench stated,

“Conviction of the appellants was not maintainable on a probability in absence of direct evidence. The benefit of doubt ought to have been given to the appellants.”

Read More


State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208

Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ., held that a person with disability should be considered for promotion along with other persons working in the feeder cadre. The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

Read More 


Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC, i.e. kidnapping for ransom.

Read More


Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

“Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security?” 

A 3-judge bench comprising of NV Ramana, R Subhash Reddy and BR Gavai JJ, directed the J&K administration to review all orders imposing curbs on telecom and internet services in the state and put them in public domain.

The Court held that the freedom of speech and expression and freedom to carry on any trade, business or occupation over the medium of internet is embodied under Article 19(1)(g) of the Constitution.

The Court also observed that suspension of the internet should only be for a reasonable duration and periodic review should be done on it. The Prohibitory orders  passed under Section 144 CrPC cannot be imposed to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Read More…


Janhit Abhiyan v. Union of India [EWS Reservation], 2020 SCC OnLine SC 624

Without looking into the merit of the case on the validity of impugned amendments i.e. Constitution (One Hundred and Third Amendment) Act, 2019 which provides for grant of 10% quota to Economically Weaker Sections (EWSs) in jobs and admissions in the general category, a 3-judge bench comprising of S.A. Bobde CJ., R. Subhash Reddy and B.R. Gavai JJ., only examined whether the petitions involve a substantial question of law or not.

The Court held that the said amendments run contrary to the judgment in case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 as it exceeds the ceiling cap of 50%, therefore, involves a substantial question of law which is to be examined by a Bench of 5-Judges as per Article 145(3) of the Constitution of India read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013.

Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections.

Read More… 


Abhilasha v. Parkash, 2020 SCC OnLine SC 736 

“The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 CrPC.” 

A 3-judge bench of Ashok Bhushan, R Subash Reddy and MR Shah, JJ., held that an unmarried Hindu daughter can claim maintenance from her father till she is married, relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself.

The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father.” 

The Court upheld the order of the Judicial Magistrate First Class as well as learned Additional Magistrate because the application was filed under Section 125 CrPC and while deciding proceedings under Section 125 CrPC, Judicial Magistrate First Class could not have exercised the jurisdiction under Section 20(3) of Act, 1956.

Read More…


Praneeth K v. University Grants Commission, 2020 SCC OnLine SC 688 

While upholding the validity of the revised University Grants Commission (UGC) guidelines dated July 6, 2020, a 3-judge bench of Ashok Bhushan, R Subhash Reddy and MR Shah, JJ., held that the State/State Disaster Management Authority’s decision to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment is beyond the jurisdiction of Disaster Management Act, 2005 and they cannot promote students without holding final year university examinations amid the COVID-19 pandemic.

When the State Disaster Management Authority and State Government take a decision that for mitigation or prevention of disaster it is not possible to hold physical examination in the State, the said decision was within the four corners of Disaster Management Act, 2005. However, the decision of the Disaster Management Authority or the State Government that students should be promoted without appearing in the final year/terminal semester examination, is not within the domain of the Disaster Management Act, 2005.

Read More… 


Rakesh Kumar Agarwalla v. National Law School of India University, (2021) 1 SCC 539 

 “Different National Law Universities have been established by different statues and have statutory functions and obligations to achieve a common purpose and to give a boost to legal education in the country.” 

A 3-judge bench of Ashok Bhushan, R Subhash Reddy and MR Shah, JJ., quashed the National Law Aptitude Exam (NLAT) conducted by National Law School of India University (NLSIU), Bengaluru and directed the admission of students in NLSIU has to be necessarily through Common Law Admission Test (CLAT).

CLAT being an All India Examination for different National Law Universities has achieved its own importance and prominence in legal education. The steps taken by National Law Universities to form a Consortium and to cooperate with each other in conduct of CLAT is towards discharge of their public duty entrusted under the different statutes. The duty to uphold its integrity lies on the shoulder of each and every member.”

Read More… 


Pravasi Legal Cell v. Union of India, 2020 SCC OnLine SC 799 

“We cannot lose sight of the present situation prevailing in the country and across the globe” 

A 3-judge bench of Ashik Bhushan, R. Subhash Reddy, JJ observed that Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holderand directed refund of air-fare during the lockdown period, when domestic and international flights’ operation was suspended.

Read More…


Ashwani Kumar v. Union of India, (2020) 8 SCC 808 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ has directed that all old age people who are eligible for pension should be regularly paid pension and those identified older people should be provided necessary medicines, masks, sanitizers and other essential goods by respective States.

Read More 


XYZ v. State of Gujarat, (2019) 10 SCC 337 

“Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record.” 

A 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ, hearing an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, held that exercise of inherent powers of High Court under Section 482 of Criminal Procedure Code, 1973 to quash FIR, when there are serious triable allegations in complaint is bad in law.

Justice Reddy opined that

where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.

Read More…


Skill Lotto Solutions Pvt. Ltd. v. Union of India, 2020 SCC OnLine SC 990 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has upheld the constitutionality of imposition of GST on lotteries, betting and gambling. The Bench further held that while determining the taxable value of lottery the prize money is not to be excluded for the purpose of levy of GST.

Read More 


Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435 

The Division Bench of Mohan M. Shantanagoudar and R. Subhash Reddy, JJ., addressed the instant case dealing with vexatious complaint. The Bench, while expressing concern over such practises emphasised over the need of scrutinising such complaints at its initiation.

Read More 


Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., has held that when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female. The Court also held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under Section 17 of Registration Act, 1908.

Read More  


Soorajmull Nagarmull v. Brijesh Mehrotra, 2021 SCC OnLine SC 1252

The Division Bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that once the fresh notification is issued by the State for land acquisition, no cause of action survive on previous notification and actions taken therein, when that proceeding is declared lapsed. Quoting the case of R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Bench stated,

“Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.”

Read More


Parveen v. State of Haryana, 2021 SCC OnLine SC 1184 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.

Read More 


State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Read More 


Bajaj Allianz General Insurance Company Private Ltd. v. Union of India, 2021 SCC OnLine SC 418 

The bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ issued directions with respect to motor vehicle accident claims and observed that the Central Government shall develop an online platform accessible to the tribunals, police authorities and insurers throughout India, as each State having an independent online platform for submission of accident reports, claims and responses to claims, will hamper efficient adjudication of claims, especially where the victim of the accident is not a resident of State where accident has occurred.

Read More 


Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy JJ., placing reliance on the case of Sushil Murmu v. State of Jharkhand: (2004) 2 SCC 338, opined that this case fulfils the test of rarest of rare cases as it involved gruesome murder for human sacrifice of 2 yr old boy.

Justice Reddy observed that Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation.”  

The Court also placed emphasised on extra-judicial confession and opined that

It is true that extrajudicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused.” 


Thingujam Achouba Singh v. H. Nabachandra Singh, 2020 SCC OnLine SC 370

“The eligibility criteria will be within the domain of the employer and no candidate can seek as a matter of right, to provide relaxation clause.” 

A Division Bench headed by R. Subhash Reddy J., while quashing the order of the High Court of Manipur by which the advertisement dated 16.08.2016 was quashed, held that to provide relaxation clause in eligibility criteria is within the domain of the employer and High Court has not power to provide a relaxation which is not notified in the advertisement.

While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right.” 


Notable Dissents 


Ravi v. State of Maharashtra, (2019) 9 SCC 622

“A civic society has a `fundamental’ and `human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy JJ., following the judgment in the case of California v. Ramos, 463 U.S. 992 where it was observed that “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and upheld (2:1) the death penalty awarded to an accused for rape and murder of a two- year old girl. The Court observed that the Sentencing Policy needs to strike a balance between (a) deterrent effect and (b) complete reformation for integration of the offender.  

Justice R. Subhash Reddy dissenting on the question of sentence noted that, I am of the view that, this is not a fit case where the appellant is to be awarded capital punishment, i.e, death penalty. According to him the mitigating circumstances of the Appellant dominated the aggravating circumstances and that there is no proof to show that reform or rehabilitation of the convict is not possible. Moreover, the conviction is solely based on circumstantial evidence, if no special reasons exist, the extreme punishment of death penalty should not be imposed.

Relying on the judgement in the case of Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 and Bachan Singh v. State of Punjab, (1979) 3 SCC 727, Justice Reddy observed that

In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302 IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case.” 


† Sucheta Sarkar, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Session 9 – ADR Mechanism and Role of Judges, Regional Judicial Conference on Strengthening Justice Delivery System: Tools & Techniques, Organized by Hon’ble High Court of Karnataka, Karnataka Judicial Academy and National Judicial Academy 27th February, 2015 to 1st March, 2015.

[2] Supreme Court, Chief Justice and Judges

[3] Sri Justice R. Subhash Reddy, Telangana High Court

[4] SC Observer, Justice R. Subhash Reddy

[5][ Sri Justice R. Subhash Reddy, Telangana High Court

[6] Hon’ble Mr. Justice R.Subhash Reddy, Gujarat High Court

[7]Supreme Court, Chief Justice and Judges

[8] Ministry of Law and Justice, Order of Appointment

[9] Supreme Court, Chief Justice and Judges

[10]The New Indian Express, Subhash Reddy to join Supreme Court

Hot Off The PressNews

Gujarat High Court: Biren A. Vaishnav, J., while dealing with the plea filed by street vendors who had been prohibited from selling non-vegetarian food on the streets of Ahmedabad rapped the Ahmedabad Municipal Corporation and asked them as to how people could be stopped from “eating what they want” just because “somebody in power thinks this is what they want you to do”.

“You don’t like non-veg food, it is your lookout. How can you decide what people should eat outside? How can you stop people from eating what they want?”

The Court was dealing with the plea filed by 20 street vendors challenging the non-implementation of Street Vendors [Protection of Livelihood and Regulation of Street Vending] Act, 2014.

Petitioners have also challenged the deplorable, illegal, and unjust action of the Respondents [AMC, State of Gujarat] in seizing the laaris/carts and other ancillary equipment/apparatus of the Petitioners coupled with the raw materials used to prepare food/snacks for consumption without following due process.

AMC had claimed that the drive was undertaken in view of the fact that selling non-vegetarian food on the streets creates a health hazard as it was unhygienic and also harmful for the environment.

The plea also averred that as long as a person doesn’t impinge/violate the right of another or violates the law of the land, he/she must be free to produce/sell anything that he/she wants as such right has been afforded by Article 21 of the Constitution of India. The plea prayed that AMC be directed o not oust any hawker/vendor/seller from the streets and not to impound any cart/laari/equipment/apparatus of the street vendors without complying with the provisions of the Street Vendors Act, 2014 and rules framed thereunder.


[Source: The Indian Express]


Suchita Shukla, Editorial Assistant has reported this story.

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul* and R. Subhash Reddy, JJ has temporarily restored the senior designation of Advocate Yatin Narendra Oza who was stripped off this designation after he levelled charges of corruption against the registry of the Gujarat High Court.

What is the case about?

On 21.03.2020, Oza wrote a letter to the Chief Justice of India making serious allegations against a senior-most Judge of the Gujarat High Court in his capacity as President of the Bar Association. He then transgressed all limits by circulating the letter in the Bar Association’s WhatsApp group after calling the High Court a “Gamblers Den” in a Press Conference.

Oza was then stripped off his Senior Advocate designation. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

High Court’s line of arguments

The High Court labelled the apology rendered by Oza as a repeated behaviour of what would amount to “slap, say sorry, and forget”. The High Court objected to the Writ Petition filed before the Supreme Court on the ground that what has been withdrawn is a ‘privilege’ and not a ‘right’. It was further argued that the conferment of this privilege weighs not only on the existence of certain legal acumen but a much higher standard of behaviour and if such presupposition disappears, the authority is empowered to withdraw the privilege. Hence, re-conferment of this right on the petitioner through a writ of mandamus would be de hors the exercise of powers under statutory rules.

Oza’s line of arguments

Oza’s case on the other hand was that the Supreme Court should show compassion. The withdrawal of designation is not limited by time and is disproportionately harsh as the petitioner is not being given an opportunity to redeem himself. The filing of an application afresh for designation after the specified time bar is stated to not really be a redemption.

It was argued that he has bona fidely raised issues within the institution regarding non-circulation of matters, based on a large number of complaints received from the members of the Bar by him by reason of his holding the position of the President. He endeavoured to resolve the grievances within the system by writing several letters and making many representations which were in a sober and restrained language and that the grievance was stated to be not one against the Judges, but against the manner of working of the Registry. The Press Conference was stated to be the culmination of his inability to resolve the disputes, as a last resort where he got emotionally overwhelmed and made utterances of which he has been very apologetic from the very beginning.

Supreme Court’s ruling

While the Court found little ground to interfere with the High Court’s decision, it still thought it proper to give one more and last chance to Oza and hence, temporarily restored Oza’s Senior designation for a period of two years from 1.1.2022.

“It is the High Court which will watch and can best decide how the petitioner behaves and conducts himself as a senior counsel without any further opportunity. It will be for the High Court to take a final call whether his behaviour is acceptable in which case the High Court can decide to continue with his designation temporarily or restore it permanently.”

The Court made clear that if there is any infraction in the conduct of the petitioner within this period of two years, the High Court would be well within its rights to withdraw the indulgence.

“In effect, the fate of the petitioner is dependent on his appropriate conduct as a senior counsel before his own High Court, which will have the final say. All we are seeking to do is to  give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”

[Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004, decided on 28.10.2021]


Counsels:

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appointments & TransfersNews

President of India appoints the following Advocates as Judges of the Gujarat High Courts w.e.f. the date they assume charge of their respective offices:-

Sl. No. Name (S/Shri)
1. Smt. Mauna Manish Bhatt
2. Samir Jyotindraprasad Dave
3. Hemant MaheshchandraPrachchhak
4. Sandeep Natvarlal Bhatt
5. Aniruddha Pradyumna Mayee
6. NiralRashmikant Mehta
7. Ms. Nisha Mahendrabhai Thakore

Ministry of Law and Justice

[Dt. 16-10-2021]

Appointments & TransfersNews

Elevation of 7 Advocates as Judges in Gujarat High Court


Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the Gujarat High Court:

1. Mrs. Mauna Manish Bhatt,

2. Shri Samir J. Dave,

3. Shri Hemant M. Prachchhak,

4. Shri Sandeep N. Bhatt,

5. Shri Aniruddha Pradyumna Mayee,

6. Shri Niral Rashmikant Mehta, and

7. Ms. Nisha Mahendrabhai Thakore.


Supreme Court of India

[Collegium Statement dt. 21-9-2021]

Case BriefsHigh Courts

Gujarat High Court: A.G. Uraizee, J., decided a matter with regard to permission to sell the undivided share of minor from the joint family property.

Present appeal under Section 47 of the Guardians and Wards Act (GNW Act for short) read with Section 96 of the Code of Civil Procedure, 1908, the appellant assailed the decision of Additional District Judge whereunder the application under Section 9 of the GNW Act for permission to sell the undivided share of minor was rejected.

Citing the decision of this Court in Sankhala (Mali) Kantaben v. Rabari Panchabai Chelabai, AIR 2020 Guj 205, Shivangi Vyas, Advocate for the appellant submitted under Section 12 of the GNW Act, no permission was required to sell the undivided share of the minor. Therefore, she urged that the impugned judgment may be set aside, and appellant shall be permitted to sell the undivided share of her minor son.

An affidavit was also filed wherein it was stated that the land was being sold to tide over the financial difficulties.

High Court observed that no permission was required to sell the undivided share of minor in the joint family property.

To the above, Court added that the interest of the minor son is to be taken care of, while his share of joint family property is being sold.

Bench while giving permission to sell the undivided share of her minor son in the joint family property, directed the appellant to intimate to the trial Court, the total sale consideration derived from the sale of joint family property and the amount falling to the share of her minor son shall be deposited in the trial court.

Further, the trial court, in turn, shall invest the same in FDR receipts in a nationalised bank for a period of five years or till the minor attains the age of majority, whichever is earlier, and the periodical interest accruing on the FDR receipts shall be disbursed in favour of the minor through his guardian i.e. the appellant. [Kantaben Jayendrabhai Savla v. Nil, R/First Appeal No. 1977 of 2021, decided on 17-08-2021]


Advocates before the Court:

Shivangi D Vyas for the appellant(s) 1,2,3

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed a petition which was filed against the order passed by the Commissioner of Police, Surat whereby the petitioner is detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Advocate for the petitioner had submitted that, mere filing of five FIRs against the petitioner itself was no ground, for the detaining authority, to arrive at the conclusion that the activities of the petitioner were prejudicial to the maintenance of the public order. It was further submitted that, no legally sustainable satisfaction was recorded by the detaining authority before passing the impugned order.

Assistant Government Pleader for the respondent State Authorities has supported the detention order passed by the detaining authority.

The Court found that the detaining authority had exercised the powers, treating the petitioner as a ‘dangerous person’ within the meaning of Section 2(c) of the Act. The five FIRs, which were the basis to treat the petitioner as such a person was referred to in the impugned order and further details in that regard were considered by the Court. The Court finally opined that the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order.

It was noted that in the grounds of the detention, the detaining authority had recorded to the effect that, according to him, the activities of the petitioner created a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record, this Court found that, the citation of such words was more in the nature of rituals rather than with any significance to the alleged activities of the petitioner.

The petition was allowed.[Keyur v. Police Commr., 2021 SCC OnLine Guj 1327, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the Petitioner: Mr Samir Afzal Khan

For the Respondents: Mr Shivam Dixit

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Vineet Kothari, ACJ and Umesh A. Trivedi, J., allowed a petition which was filed praying the understated:

  1. Direct the Respondents to e-publish on their website all parts of all gazettes published by the State Government to be accessed free of cost.
  2. Direct the Respondents to make available on their website as much as possible copy of all old gazettes previously published by the State of Gujarat to be accessed free of cost.
  3. any other and further relief deemed just and proper be granted in the interest of justice;
  4. to provide for the cost of this petition.

Government Pleader Ms Manisha Lavkumar Shah, submitted that prayer (a) had already been complied with and the State Government had already started E-publishing all the Notifications issued by the State Government on online method. It was further brought into notice of the Court that as far as the past or old Notifications issued earlier were concerned, such old Gazettes as prayed in prayer (b), the process was underway and the same will be over within a short period. The petitioner however prayed that some time frame may be fixed for that purpose.

The Court allowed the petition and granted prayer (b) with the time framed of six months from then to E-publish old Gazettes also by the State Government compliance report of which have to be submitted after six months from the date of the order.[Bandish Saurabh Soparkar v. State of Gujarat, 2021 SCC OnLine Guj 1306, decided on 01-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

Appointment of Acting Chief Justice


President appoints Justice Vineet Kothari, senior-most Judge of Gujarat High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Justice Vikram Nath relinquishes the charge as Chief Justice of the Gujarat High Court consequent upon his appointment as Judge of the Supreme Court of India and Justice Rashmin Manharbhai Chhaya, senior-most Judge of Gujarat High Court, to perform the duties of the office of the Chief Justice of Gujarat High Court with effect from 02nd September 2021 consequent upon the retirement of Shri Justice Vineet Kothari.


Ministry of Law and Justice

[Notification dt. 27-08-2021]

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed the petitions which were filed apprehending detention under PASA in connection with the Complaint filed by the State Tax Department in the Court of the Chief Judicial Magistrate, under different sub-sections of Section 132 of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017 read with Section 120B of the Penal Code, 1860.

On 15-06-2021 it was informed to the Court that, atleast one of the petitioners could be detained under PASA, and while granting protection in favour of the petitioners, this Court had passed an order.

There was no response from the Finance Department of the State of Gujarat to the above-quoted query of this Court. Instead, affidavit in replies – all dated 22-07-2021 were filed on behalf of the Gujarat Goods and Services Tax Department, wherein, over and above giving details of the allegations against the petitioners, in the concluding part it was stated that, no proposal was made to detain the petitioners under PASA so far, by the State GST Department.

The Court was of the view that not only the query raised by the Court qua the citizen – the trader community, in this case, was not responded by the competent Authority from the Finance Department of the State, the sword kept hanging over the head of the traders, because it was replied by the GST Department that no proposal was made to detain the petitioners under PASA so far. Citizen can not be left in lurch like this.

When the State on the whole and the economy, in particular, is trying to regain the momentum post COVID, such hanging sword situation can not be permitted to continue.

The Court while allowing the petitions found that in the facts like this, the State Authorities can not be permitted to resort to the stringent provisions like detention under the Prevention of Anti Social Activities Act against the petitioners.[Amitkumar Rameshbhai Patel v. State of Gujarat, R/Special Civil Application No. 6465 of 2021, decided on 18-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioners: Mr Tejas M Barot

For the Respondent: Mr Hardik Soni

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker, J., allowed a petition which was filed aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court in the connection for the partition alleging that the properties were of the joint family properties and possession of 1/2 share in the suit property.

The case of the plaintiff is that the suit-properties are the joint family properties of the deceased Diwala Gausa, the plaintiff and the defendant. It is the further case of the plaintiff that deceased Diwala Gausa was the Karta of the joint family and Diwala Gausa purchased the suit properties with the aid of joint family funds under the provisions of the Bombay Tenancy and Agricultural Lands Act.

The defendant had challenged the judgment of the First Appellate Court on the ground that the First Appellat Court had erred in holding that the Diwala Gausa was not in sound state of mind and he did not understood the effect of the disposition he had made. According to defendant, the Appellate Court overlooked the fact that after marriage of the plaintiff, the plaintiff had been residing at his Father in-law’s house at Ghantoli. It was also alleged that the Appellate Court had not considered the important fact that the defendant’s father died before 30 years so the deceased Diwala Gausa had naturally more love and affection to his grand-son, who lost the love of his father at the age of around 12 or 14 years forever. It was also contended that the observation of the first appellate Court that at the time of execution of the Will false statement was made that no son of the deceased was alive, was contrary to the documentary evidence on record.

The Court raised 2 questions of law:

  • Whether on the facts and circumstances of the case, the lower Court has committed error in holding that the Will on which the appellant relied on is a Will executed by the deceased Diwala Gausa in sound state of mind on 11-1-1975?
  • Whether after the appellate Court came to the conclusion that the plaintiff does not prove that the suit properties are undivided family properties and erred to decree the suit of the plaintiff for one half share in the Suit property?

The trial Court had held that the suit properties were the self acquired properties of the deceased Diwala Gausa. The trial Court had also held that the plaintiff had failed to prove that the Suit properties were undivided family properties of the parties. The First Appellate Court had ultimately passed the Order to the effect that the plaintiff  was entitled to partition with metes and bounds and also directed the Collector, Surat or any subordinate to the Collector deputed by him, to make partition and separation of the lands and had also passed order for drawing the decree which was again challenged by the defendant in the Second Appeal.

Ms Dhara Shah, advocate for the appellant had vehemently submitted that deceased Diwala Gausa had executed the Will whereby the properties had been bequeathed to the appellant therein. She had also submitted that the plaintiff had never resided with the deceased and he was residing with his wife at his father-in-law’s house. She also submitted that the allegations made by the plaintiff regarding the properties being HUF, it was not proper as entire properties were self-acquired properties of the deceased.

Mr Nagesh Sood, advocate as an amicus curiae, had submitted that there were two agricultural properties and the deceased was only Karta of HUF. He had also submitted that the properties being agricultural lands and deceased being Karta of the HUF, the deceased had no right to bequeath the properties in favour of the defendant.

The Court put forward Section 59 and Section 82 of the Indian Succession Act and concluded that even a person who is deaf or dumb or blind can make a Will if they are able to do what they do by it. Even a person who is insane may make a Will during interval if he is of sound mind. Therefore, under Section 59, only rider for non-capability of making Will is of being minor who is prohibited to dispose of his property by Will. The Court further explained that a Will is an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his life time, to be acted upon only on his/ her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. The Court further throwing light on Section 68 of the Act stated that requirement of Section 68 of the Evidence Act in proving the Will was to produce at least one of the attesting witnesses. In view of the provisions of Section 68 of the Evidence Act, there was no need to examine the scribe of Will; however, the appellate Court had heavily relied on the fact that the scribe of the Will has not been examined by the defendant. This reasoning and observation of the first Appellate Court was not in consonance with the legal requirement for the proof of the Will.

The Court allowed the appeal holding that first Appellate Court has committed serious error of law and further answered the question of law:

  • It is properly held by the trial Court that the Will was executed in the sound state of mind by the deceased Diwala Gausa.
  • Since the properties were held to be selfacquired properties of the deceased and ‘Will’ is found to be valid, the First Appellate Court has committed serious error of facts and law in passing decree in favour of plaintiff for 1/2 share in the suit properties.

[Sonaji Raghala Chaudhari v. Akha Diwala Chaudhari Thr’heirs, 2021 SCC OnLine Guj 990, decided on 02-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Vineet Kothari and B.N. Karia, JJ., took up a petition which dealt with the parties not only filing Civil Suits, Writ Petitions, and Letters Patent Appeals under Article 226 of the Constitution but also going for forum shopping.

The Writ petition was dismissed by the order dated 06-10-2010. In Letters Patent Appeal, this Court had initially passed the status quo order on 13-12-2010 which came to be modified after detailed hearing on 17-02-2021.

The assets of the Defaulter Company –  GPPML were taken over by GSFC in the exercise of its statutory powers under Section 29 of the SFC Act, 1951 and sold away to SIL at a price which was the subject matter of challenge.

Detailed interim orders passed in the matter leading to the proposed order passed by the Court for facilitating the transfer of all the proceedings to the National Company Law Tribunal (NCLT), Ahmedabad, which is the expert fact-finding Tribunal constituted under the provisions of the New & Special Law viz. Insolvency and Bankruptcy Code, 2016 in terms of the decision of the Supreme Court in the case of Action Ispat and Power (P) Ltd. v. Shyam Metalics and Energy Ltd., (2021) 224 Comp Cases 35 (SC) where it was held that the winding up Court or the Company Court should transfer the winding up proceedings to NCLT, not only at the initial stage, but even in the mid stage of winding-up proceedings, unless the winding-up proceedings have reached a stage where it would be irreversible and making it impossible to set the clock back and then only that the Company Court must proceed with the winding-up, instead of transferring the proceedings to NCLT under IBC provision.

The Court noticed that the auction purchaser – SIL not only was involved in litigation before this Court, and entered into an alleged OTS (One Time Settlement) with GSFC which is with a doubtful integrity to say the least and is under a serious contest by left out Secured and Unsecured Creditors, but SIL also approached the Hon’ble Delhi High Court by way of writ petitions merely because it had a namesake registered office of the Company in Delhi also, whereas its industry in question is in Gujarat.

The Court stated that scattering the litigation in various Forums is the root cause of multiplicity of litigation and amounts to misuse and abuse of process of law and by sheer passing of the different orders which may or may not be conflicting orders inter-se by different Forums, who apparently would have the competent jurisdiction to be seized of those proceedings and passed those orders, ultimately may result in an utter messy confusion of the things and unresolved problems for long time. Such malpractices deserve to be seriously checked by enacting some kind of filters where the parties to one lis essentially are restricted to one competent Forum to avoid any such chance of conflicting orders and forum shopping.

The hurried One Time Settlement of GSFC with SIL in favour of which even the major part of the auction price was converted into a term loan by GSFC and in the repayment of which, SIL defaulted, still instead of again taking over the assets and re-auctioning them, GSFC chose, for the reasons best known to it to enter into One Time Settlement with SIL at a mere Rs.60 lakhs and that is a matter to be looked into by the NCLT. The said SIL is also said to have stopped its production activities and the assets of GPPML sold to it under Section 29 way back in the year 1990 are still in disuse or are not being used for any productive activity and that is not only a wastage of assets for the creditors and other stakeholders, but also a national waste.

The Court was of the view that NCLT would be the best suited Forum in these circumstances to the concerned and connected issues in this case.[Lalitaben Govindbhai Patel v. Gujarat State Financial Corpn., 2021 SCC OnLine Guj 1077, decided on 26-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

For the Appellants: Mr Sandeep Singhi and Mr AS Vakil

For the Respondents: Mr BH Bhagat, Mr RD Dave, Mr Pranav G Desai, Mr Abhijit P Joshi, Mr Nandish Y Chudgar and Mr Devang D Trivedi

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., dismissed a petition which was filed with the sole purpose of securing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India.

It was the case of the petitioners that for the last more than 3000 years the Parsee community as per their religious mandate, laid out the deceased in a secluded place known as “Dakhmas” (the Tower of Silence). Respondent 1 had issued guidelines on 15-3-2020, namely “Covid-19 Guidelines on Dead Body Management”, whereby two modes i.e. either cremation or burial were identified for the disposal of the dead body, who died due to Covid-19.

As regards the religious practices of “Dokhmenashini”, it has been stated that the Parsees across India since several centuries have practised “Dokhmenashini”, wherein the dead body is kept at a height in a structure known as “Well/Tower of Silence” to be eaten by vultures and the remains being exposed to the Sun to be decomposed. The well is situated at secluded place and would be accessible to “Nasheshalars”, who handle the dead body and place it in the well. Most of the Parsees prefer Dokhmenashini for the final disposal of their dead bodies following their religious faith, however, on account of the Covid-19 Guidelines for the management of dead bodies, the Parsees are not allowed to perform their last rites Dokhmenashini as per their religious faith.

Counsel for the petitioner, Mr Asim Pandya along with Mr Manan Bhatt submitted that Dokhmenashini is an integral part of the religious practices of the Parsee community, who are in a very miniscule minority, and that it is their fundamental right to practice their religion in accordance with their faith and belief. He further submitted that under the pretext of the impugned guidelines on Dead Body management during the Covid-19 Pandemic, the Parsees are deprived from practising their religion by not permitting the Dokhmenashini, which action is violative of the fundamental rights guaranteed to the Parsees under Articles 14, 19,21, 25, 26, and 29 of the Constitution.

Sr. Advocate Mr.Perci Kavina, who belongs to the Parsee community, was incidentally present during the course of hearing through the video conferencing and with the permission of the Court, he sought to put forth certain facts. He submitted that since last 100 years, the means of disposal of dead bodies of the Parsees is burial only. He further elaborated that the burial is neither unknown to the Parsees, nor it is considered anathematic or sacrilegious to be buried.

Advocate General Mr Kamal Trivedi for the respondent-State, ASG Mr Devang Vyas for the respondent Central Government and the Advocate Mr Dhaval Nanavati for the respondent Corporation, submitted that said guidelines were issued in the larger interest of the public to ensure that the Covid-19 Pandemic was not further spread, and the Court may not entertain such petition.

The Court clarified that it does not undertake to decide an issue unless it is a living issue. The Court explained that the impugned guidelines have been issued by the Ministry of the Health and Family Welfare Department in the wake of Covid-19 Pandemic on the management of dead bodies, in order to prevent the further spread or covid related infection. Such guidelines issued in the larger public interest considering extraordinary circumstances prevailing in the country, would take precedence over the individual interest as also over the religious faith and belief of a particular class of community.

The safety and the welfare of the State is the supreme law as comprehended in the legal maxim – “salus populi suprema lex”. Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health.

The Court quoted part of the latest Supreme Courts ruling in Suo Moto case relating to holding of annual Kanwar Yatra amid Covid-19 Pandemic dated 16-07-2021 where it was held that “The health of the citizenry of India and their right to “life” are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right”.

The Court while dismissing the petition went on to hold that impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights of the Parsees, more particularly when such means of disposal of dead bodies is also in vogue in all parts of the country and when it is not anathematic and sacrilegious to the religious practices being followed by the Parsees.[Surat Parsi Panchayat Board v. Union of India, R/Special Civil Application No. 7585 of 2021, decided on 23-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J., addressed a bail application revolving around a matter concerning a 20-page suicide note.

Instant application was filed to seek bail in connection with FIR for the offences punishable under Sections 306, 465, 477, 120B and 114 of the Penal Code, 1860.

It was submitted that First Informant was a follower of Khodiyar Dham Ashram and the same was being run by Jayramdas Bapu. It was alleged that on 01-06-2021 he received a call that something happened to Jayramdas Bapu and on reaching the ashram it was noticed that he passed away.

It was alleged that a suicide note by Jayramdas Bapu was found from his room containing 20 pages in which deceased named three accused. It was stated in the note that the accused people caused mental and physical torture to bapu and had recorded the videos of bapu in compromising conditions with some ladies due to which bapu committed suicide.

Further, it was alleged that the death certificate certifying that the deceased passed away of natural death i.e. cardiac arrest with incorrect time of death issued by one Dr Kamlesh Kareliya of Dev Covid Care Center, was in fact issued at the behest of the applicant.

The role, which is sought to be alleged and played by the applicant, is that when he examined the dead body of the deceased, the applicant being a doctor, did not prescribe for the postmortem of the deceased and by issuing such certificate, he had tried to save or shield the main accused.

High Court while granting the bail to the applicant considered following:

(a) The role attributed to the applicants;

(b) The applicant is not named in the F.I.R.;

(c) The applicant is a doctor, who was treating the deceased since last several years;

(d) Prima facie, the F.I.R. reveals that there is no monetary ill-gain by the applicant;

(e) Prima facie, the ingredients of Sections 306, 107 as well as 465 of the IPC are not established in the case of the applicant;

(f) The suicide note, which is left by the deceased does not implicate the applicant in any manner and there are no allegations leveled against the applicant in this regard in the F.I.R.;

(g) Considering the facts of the case, the custodial interrogation of the applicant at this stage is not necessary.

Bench relied upon the following Supreme Court cases:

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 and

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694

In view of the above, the present application was allowed.[Nilesh Gopalbhai Nimavat v. State of Gujarat, 2021 SCC OnLine Guj 1056, decided on 16-07-2021]


Advocates before the Court:

MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1

MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR HIMANSHU K PATEL, APP for the Respondent(s) No. 1

Case BriefsCOVID 19High Courts

Gujarat High Court: The Division Bench of Vikram Seth, CJ and Bhargav D. Karia, J., framed certain points for consideration of the State and directed it to submit an affidavit, while further hearing a matter initiated suo motu by the High Court taking note of the COVID-19 situation in the State.

After the Court suggestions made on 12-04-2021, Core Committee headed by Chief Minister and Deputy Chief Minister notified the immediate decisions.

Bench flagged the following issues for consideration of the State and for an appropriate response for being incorporated in its next affidavit.

  • It was brought to the Court’s notice that RTPCR testing laboratories are not available in all the districts of the State, what to say of the towns/talukas and tribal areas. The State to ensure setting up of such laboratories in all the districts where it is not available, also in the towns/talukas and tribal areas of the State as early as possible. For this, the State may explore public private partnership mode or any other mode which may encourage setting up of such laboratories throughout the State.
  • Existing capacity for RTPCR testing be increased across the State in order to reduce time for collection of sample and getting the report ready after analyzing the sample. The delay in getting an RTPCR sample being collected and the further delay being caused in getting the report, may be forthwith reduced.
  • Accurate reporting of RTPCR testing with correct figures of positive results be made public. The State should not feel shy of publishing the correct data of RTPCR testing results, if such figures are not being correctly reported.
  • Remdisivir injection which at present is being looked at as a life saving drug for Covid­19 virus infected patients, when apparently it is not so, should be explained and communicated to the public at large by the experts of the subject in the State through print, digital and electronic media. Otherwise so long as the myth continues, Remdesivir injection will always be in a deficit and being misused by black­marketeers and hoarders.
  • On­line portal giving details of the availability of vacant beds and occupied beds under different categories for Covid patients for all districts be controlled by the State. Instead of data being uploaded twice a day, the availability of beds should be displayed on a real time basis on the portal
  • As assured by Trivedi, Advocate General, the availability of oxygen would be sufficient to cater to the demands within three to four days in view of the efforts to procure the same by the State. The status of availability of oxygen vis-a-­vis demand be reported to the Court.
  • State should publish data by making efforts to find out actual number of Covid positive cases so as to remove general conception from the minds of the people that data given by the State is not accurate.
  • State must come up publicly in a transparent and fair manner with complete details with regard to availability and modalities of the required amenities, medication and related infrastructure for the treatment of the Covid patients, who require either facility of Covid care center, hospitalization with oxygen, ventilator, medicines, etc.
  • Any material or facility or infrastructure, if lacking in required numbers should be accepted by the State publicly and remedial steps should be taken immediately to improve the situation.
  • It is only when the State declares that it has requisite essential infrastructure, medication and treatment facilities available with supporting infrastructure, then only the rush for acquiring medicines, hoarding of medicines, buying medicines at higher price, exploitation by the unscrupulous sector would be stopped.
  • To achieve the above, State needs to have honest and transparent dialogue with the public which should be communicated to one and all through print, electronic and social media.
  • Honest and transparent dialogue by the State would generate trust amongst general public so as to know the grave situation prevailing at the current times which may persuade the public at large to strictly abide by the standard protocol of wearing mask, keeping social distance, sanitization by frequent hand washing, etc, as prescribed and known to all.

Court added that in the present situation State is not expected to provide all the essential infrastructure, medication and treatment facilities at once, but if the people are taken into confidence with regard to the efforts being made by the State to take care of the people suffering from the pandemic, the people at large would definitely cooperate and appreciate the efforts being made by the State.

While concluding, it was requested by the High Court that parties seeking intervention are requested to sit together, deliberate and address the Court through one voice.

Matter to be listed on 20-04-2021.

State to come up not only to the expectations of the Court but the public of the State at large.

[Suo Motu v. State of Gujarat, R/WP (PIL) No. 53 of 2021, decided on 15-04-2021]

Case BriefsHigh Courts

Gujarat High Court: G.R. Udhwani, J., dismissed a petition wherein a mandate was sought to issue an order/ circular / instructions directing all non-banking financial companies such as respondent 3 to refrain from taking steps for recall of loans availed by various persons or for liquidating securities pledged or available with them, during the period of a moratorium until 31-08-2020 as may be extended by respondent 1.

The petitioner was a borrower and respondent 3 was a financier. The Court observed that from the bare perusal of the prayer clauses evidently, the petition was more in the nature of requiring this Court to undertake the activity of banking regulations upon itself and pass omnibus orders directing the respondents more particularly the respondent 1 to come up with the policy decision as desired by the petitioner.

The Court held that such a petition cannot be maintained, assuming that it is maintainable, even on merits, no case is made out; inasmuch as, the entire case proceeds on the misconception as to the applicability of the statement on the development and regulatory policy.

The Court was unable to find any provision in the policy above-stated bearing on the maintaining of the margin, consequently dismissed the petition.[Seetha Kumari v. Reserve Bank of India, R/Special Civil Application No. 7942 of 2020, decided on 07-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.