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.

Hot Off The PressNews

In a case of a death in judicial custody, the National Human Rights Commission, India has set aside the conclusion of an Additional Chief Metropolitan Magistrate of Ahmedabad that it was natural.

On the basis of the material on record, NHRC has held that the Under Trial Prisoner died due to the negligence and torture by the jail officials of Sabarmati Central Prison, Ahmedabad on 29-05-2017 and that the Judicial Enquiry Report is shady in nature and hence, cannot be relied upon.

Further, expressing serious concern over the order of the concerned judicial officer, the Commission has directed its registry to bring the matter to the notice of the Chief Justice of the Gujarat High Court for consideration of taking necessary action on the presence of such Judicial Officers.

The Commission has noted in its proceedings in the matter under case no Case No.487/6/1/2017-JCD that “it is very surprising & shocking to know that though 22 ante mortem injuries over the body of the deceased were clearly reflected in post mortem report, but still enquiry magistrate i.e. ACMM, Ahmedabad, Gujarat had stated that no injury was found to be present on the deceased. The Chief Justice of Gujarat High Court has to seriously consider the presence of such Judicial Officers in public domain.”

The NHRC has also issued a notice to the Chief Secretary, Govt. of Gujarat, to show cause why not an interim relief of Rs 3 Lakh should not be recommended to be paid to the Next of the Kin, NoK of the deceased Under Trial Prisoner, as his human rights were violated by the delinquent Jail officials, Director General of Police, Gujarat has been asked to submit a detailed report in the matter along with criminal case registered and progress in the matter. The response is expected within four weeks.

The Commission, as per its standing guidelines, had registered the case on the basis of an intimation from Supdt. Central Prison Ahmedabad Gujarat on 31.05.2017 regarding the death of UTP Ashok @ Lalit on 29.05.2017.

On the directions of the Commission, its Investigation Division informed that the victim under trial prisoner was in the custody of Sabarmati Central Prison, Ahmedabad since 27.05.2017. He was arrested in case no. 5261/15 u/s 66(1)(b), 65(a) Prohibition Act by PS Maghaninagar. Within two days on 29/5/2017, he fell ill and was sent to the Civil Hospital, Ahmedabad for treatment where he died on the same day at 16.38 hrs.

The postmortem was done by a panel of four doctors, which revealed 22 ante-mortem injuries from head to toe on the person of the deceased. The cause of death was kept preserved. Later, after viscera & HPE, the FCOD was given as death due to shock and hemorrhage as a result of injuries sustained over the body. However, in the magisterial enquiry the ACMM, Ahmedabad, Gujarat concluded that the health screening report, as well as inquest report, revealed that no injury was present on the person of the deceased. During the magisterial enquiry, the family members did not complain of anything and based on the statements of doctors & jail officials, so he concluded that there was no direct or indirect evidence that the deceased was physically or mentally tortured or ill-treated during custody and without any evidence.

The Commission noted that the Under Trial Prisoner was normal at the time of entry into the jail and died within two days of his entry into the jail. The strong scientific & biological forensic evidence cannot be undermined as far as the cause of death is concerned. This is also a fact that he was in jail for the past two days before his death in the hospital. Hence, there is no point in accepting that his death was natural. This is a clear case of unnatural death in the judicial custody of Sabarmati Central Jail & hence State is vicariously responsible for the same. Further, the Commission held that the statements of the family members of the victim after his death bear no relevance as the victim was in jail and the family members may not have met after the injuries, when he was alive.


National Human Rights Commission

[Press Release dt. 08-01-2021]

Appointments & TransfersNews

President, after consultation with the Chief Justice of India, transfers Justice Vineet Kothari, Judge of the Madras High Court, as a Judge of the Gujarat High Court and to direct him to assume charge of his office in the Gujarat High Court.

ORDER


Ministry of Law and Justice

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance.

An instant appeal under Section 19 of the Family Courts Act, 1984 was filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939.

Analysis, Law and Decision

Question for consideration:

Whether the Family Court committed any error in passing the order of permanent alimony in favour of the wife while granting the decree of divorce to the wife?

There are two types of alimony:

1. Given at the time of court proceedings- This is usually the maintenance amount.

2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Supreme Court on a creative and meaningful interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the Iddat period.

In the Supreme Court decision of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the question that fell for consideration was whether a Muslim Divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 CrPC, and if yes, then through which forum.

In the above decision of the Supreme Court, it was held that petition under Section 125 CrPC would be maintainable before the family court as long as the wife does not remarry. The amount of maintenance to be awarded under Section 125 of the CrPC cannot be restricted for the Iddat period only.

Main Argument

The most significant submission on behalf of the appellant was that no provision exists in the Dissolution of Muslim Marriage Act, 1939 for the maintenance or permanent alimony. Further, it was stated that Family Court had no jurisdiction to pass any order with respect to maintenance or permanent alimony once the suit is allowed and the marriage is dissolved at the instance of the wife.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Muslim Women Act is “to protect the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto.

Hence the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands.

Family Court

Bench observed that, where a Family Court has been established, the power and the jurisdiction of the Family Court under Section 7(2) of the Family Courts Act, 1984 to entertain an application for maintenance, even by a divorced Muslim wife, under Chapter IX of the Code of Criminal Procedure has not been taken away, either expressly or even by implication by the Muslim Women Act of 1986.

And once such an application is made to a Family Court under Section 7(2) of the Family Courts Act, and not to a Magistrate, the same has got to be disposed of by the Family Court in accordance with the provisions of Chapter IX of the Code of Criminal Procedure, and the Muslim Women Act of 1986, including its Section 5, would have no manner of application.

Matrimonial Property

Further, it was stated that the right to maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’.

Section 4 of the Act, 1986

It was also sought to be argued on behalf of the appellant that in view of Section 4 of the Act, 1986, the former husband had no liability to make any provision for the Post-Iddat period.

Bench observed that the right of maintenance given to the wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself, they should be granted whatever reliefs to which they are entitled.

Supreme Court in the decision of K.A. Abdul Jaleel v. Shahida, (2003) 4 SCC 166 was concerned with the provisions of Section 7 of the Family Courts Act, 1984 as to whether the Family Court had the jurisdiction to adjudicate upon any question relating to the properties of the parties not only of the subsisting marriage but also divorced parties and the Supreme Court was pleased to hold that the reason for the enactment of the Family Courts Act, 1984, was to set up a Court to deal with all the disputes concerning with the Family and it is now a well-settled principle of law that the jurisdiction of a Court created specifically for the resolution of disputes of certain kinds should be construed liberally.

Wife has remarried

Counsel submitted that the wife was remarried and in view of there was no question of any lump sum permanent alimony.

Bench observed that

A divorced Muslim woman is entitled to receive, from her husband, inter alia, “maintenance”, “reasonable and fair provision”, “Mahr” etc. under Section 3 of the Act, 1986.

Permanent Alimony

Bench stated that what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it.

The Supreme Court had the occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Act, 1939 is entitled to maintenance under Section 125 CrPC, and it was held in Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509 that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of the Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code.

The Supreme Court held that divorce resulting from the dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act).

Conclusion

Bench observed that when the Court would make an award of permanent alimony or for one-time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to or for any particular period.

The permanent alimony in a way is an estimated sum in a lump sum to discharge the judgment debtor from his future liabilities unconditionally.

The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee.

On remarriage status of divorcee comes to an end and she acquires another marital status as someone’s spouse. Under the Act, 1986 as under Section 125 CrPC, the wife includes a divorcee.

In view of the above discussion, it can be said that:

when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in a new relationship.

The proposition of law laid down by the Court should be looked into keeping in mind Section 3(1)(a) of the Act, 1986.

A divorced woman is entitled to ‘a reasonable and fair provision” and “maintenance” to be made and paid to her within and post the Iddat period by her former husband.

Point-wise Conclusion of the decision:

  • After the Act of 1939, a wife had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.
  • The ex-wife, having obtained a divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to the reasonable and fair provision under Section 3 of the Act, 1986.
  • The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
  • Dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.
  • Right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution.
  • The Law contemplates that the husband has two separate and distinct obligations; (I) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in the discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
  • Provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
  • The permanent alimony in a way is an estimated sum in a lump sum to discharge the husband from her future liabilities unconditionally.
  • If the wife gets remarried, her status of divorcee comes to an end and the liability of the husband to pay periodical maintenance would also come to an end.

Another significant observation of the High Court was which was placed by the counsel for the parties was that the appellant had remarried way back in the year 2014. Before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under Section 494 of the Penal Code.

The materials on record indicated that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. Even during the pendency of such proceedings, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

Hence, in Court opinion, the Family Court’s line of reasoning ad the ultimate conclusion that was drawn by the family court was just and proper.

Therefore the appeal was dismissed.[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711, decided on 19-03-2020]


Advocates who appeared for the parties:

Nishant Lalakita for Appellant 1

Javed S Qureshi for Appellant 1

SP Majmudar for Defendant 1

Shashvata U Shukla for Defendant 1

COVID 19Hot Off The PressNews

Justice G.R. Udhwani

Justice G.R. Udhwani of Gujarat High Court passed away while undergoing treatment for Coronavirus (COVID-19).

[Source: PTI]

BACKGROUND

Born on 25-11-1961 at Ahmedabad in the family of a businessman. Graduated in B.Com from Navgujarat Mahavidhyalaya, Ahmedabad in 1983. Obtained Law Degree from Sir L.A. Shah Law College, Ahmedabad in the year 1986. Was enrolled as an Advocate with Bar Council of Gujarat on 30-06-1987.

Joined the legal profession in 1987 in the High Court of Gujarat. Practised in the High Court of Gujarat in all fields of law i.e. Company Matters, Labour Matters, Industrial Matters, Service Matters, Constitutional Matters, Civil and Criminal Matters. Appointed as Judge in City Civil Court at Ahmedabad on 12-02-1997. Was appointed as Additional Judge, Special Court (POTA) on 18-10-2003. Was appointed as Law Officer on 22-07-2004, which was redesignated as Registrar (Legal) on 01-11-2004 in the High Court of Gujarat. Was repatriated to the State Judiciary as Judge, City Civil Court, Ahmedabad on 13-07-2007. Was appointed as Registrar (Infrastructure & Information Technology) on 18-05-2010 in the High Court of Gujarat. Worked as Incharge Registrar General, High Court of Gujarat from 17-02-2011 to 19-06-2011. Was appointed as Registrar General, High Court of Gujarat from 20-06-2011 to 11-11-2012.

His Lordship was elevated as an Additional Judge, High Court of Gujarat on 12-11-2012 and confirmed as Permanent Judge on 10-07-2014.

 

Case BriefsHigh Courts

Gujarat High Court: A.C. Rao, J., dismissed a bail application in connection with an FIR registered for the offences under Sections 302, 201 and 114 of the Penal Code, 1860.

The counsel for the applicant, B.M. Mangukiya contended that the victim was drunk and fell down in the well, but the complainant had got up the story of throttle and thrown. It was vehemently contended that there was no mark of resistance found on the body of the victim, only one nail injury was found on the neck of the victim, so it is an only plausible explanation to the fact that he was not killed as relied on the prosecution and therefore, the present application may be released on bail. The counsel for the respondent, H.K. Patel submitted that this was a successive bail application and previous bail application was withdrawn. In the present application, the applicant has not stated anything about the previous withdrawal, so the successive bail application was not maintainable, except there is a change in circumstances.

The Court referred to the judgment of the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 where it was held that,

“this Court also observed that though the accused has a right to make a successive application for grant of bail, the Court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases, the Court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier application.”

The Court while dismissing the application observed that the previous bail application was withdrawn after the filing of charge sheet and this bail application is also filed after filing of charge sheet. The advocate for the petitioner has not been able to point out any change in the circumstances, thus no ground is made out by the petitioner.[Rakesh Makhabhai Bamaniya v. State of Gujarat, 2020 SCC OnLine Guj 1801, decided on 20-10-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: A.G. Uraizee, J., dismissed a petition which was filed aggrieved by the dismissal of Revision Application by the Secretary, Forest and Environment Department which had upheld the order of the Deputy Collector.

Respondent 7 was the Sarpanch of Jetpur Gram Panchayat, according to the petitioner, by misusing the position of Sarpanch, around more than 150 trees standing on Gauchar land of village Jetpur, were cut in violation of law and sold for the monetary benefits. The petitioner had therefore filed an application before the District Development Officer for removal of respondent 7 from the post of Sarpanch. As a result, respondent was removed from the post of Sarpanch under Section 57(1) of the Gujarat Panchayat Act. The respondent challenged her removal by filing Appeal before the Deputy Collector who had partly allowed the Appeal and set aside the order of removal and remanded the case to the Mamlatdar, Bayad, for fresh consideration. Consequently, District Development Officer reinstated the respondent 7 on the post of Sarpanch. Aggrieved by which the petitioner had filed Revision Application before the Secretary, Forest and Environment Department which was dismissed. The present petition was filed aggrieved by the dismissal.

The Court observed that petition made it abundantly clear that the procedure under Section 57 of the Panchayat Act were initiated against the petitioner on the basis of the complaint/application filed by the petitioner with Mamlatdar, Bayad on account of felling of 153 trees and that the Mamlatdar, Bayad, after receipt of complaint about felling of the trees did not conduct the proper inquiry and Panchnama of place of incident was not prepared in presence of Range Forest Officer. They also found that the Mamlatdar had imposed punishment of fine on the basis of a presumption that 150 trees felled and there was no solid proof that the respondent, who had herself felled the trees. The Court while dismissing the petition mentioned that the matter is remanded for fresh consideration in light of the observation made in the order and all concerns will get an opportunity of hearing. Thus, the lower Authorities have given sound reasons for setting aside the removal of respondent 7 from the post of Sarpanch and remanded the matter for fresh consideration.[Patel Ramanbhai Hargovanbhai v. State of Gujarat, 2020 SCC OnLine Guj 45, decided on 21-01-2020]


Suchita Shukla, Editorial Assistant has put this story together

Hot Off The PressNews

Appointments of Judges

President appoints the following to be the Judges of Gujarat High Court:

  • Vaibhavi Devan Nanavati
  • Nirzarkumar Sushilkumar Desai
  • Nikhil Shreedharan Kariel

Here’s the notification: APPOINTMENT


Ministry of Law and Justice

[Press Release dt. 01-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has said that it would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza.

The Gujarat High Court had, on August 26, 2020, rejected the request for restoration of the gown of the senior counsel and had rejected the apology offered by Oza. The matter has been listed for further consideration September 17, 2020. Taking note of this fact, the bench said,

“On hearing learned counsels for the parties, we are of the view it would be appropriate that both aspects are taken together after the orders are pronounced in the contempt petition. List on 29th September, 2020, at the end of the Board.”

The Court gave liberty to the Oza’s counsel to serve a copy of the appeal, in case Oza is aggrieved by the orders in the contempt petition and of sentence, if any, on the counsel for the High Court and if the same is served well in advance, response to the same can be filed by the High Court.

The bench of SK Kaul and Ajay Rastogi, JJ had earlier, on August 6, 2020, said,

“Grievances may exist but can always be conveyed in a better language. Systems can be improved but imputations should not unnecessarily be made.”

Noticing that the contempt proceedings are still pending and in view of his unconditional apology both before the Full Court, the contempt proceedings and before the Supreme Court, the bench had considered it appropriate that the contempt court itself first applies its mind to the issue.

Oza, who is also the the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. 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

[Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724, order dated 09.09.2020]


Also read:

Gujarat HC withdraws GHCAA President Yatin Oza’s Senior Advocate status

Guj HC | Mere apology may be no reason to an act, utterance or publication of contempt which scandalize the majesty of Court; Advocate Yatin Oza’s unconditional apology rejected

Guj HC | President GHCAA levelled allegations of corruption, malpractices against HC Registry & called this August Institution a ‘Gambling Den’; Contempt Proceedings initiated

Yatin Oza offers unconditional apology; SC says one can improve system without imputations

Full Court of Gujarat HC rejects Yatin Oza’s unconditional apology and denies to re-confer his Senior Advocate Designation