Abdul Rehman Nath V/s Umar Mohammad Beigh 2023 LiveLaw (JKL) 278

Dr. Abid Hussain Vs State (now Union Territory) of J&K 2023 LiveLaw (JKL) 279

Syed Irfan Abdullah Vs UT of J&K 2023 LiveLaw (JKL) 280

Mrs. Syed Asma Balki Vs. Mudasir Shibzada 2023 LiveLaw (JKL) 281

ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER 2023 LiveLaw (JKL) 282

A K Engineers and Contractors Pvt Ltd v. Union Territory of J&K 2023 LiveLaw (JKL) 283

Nadeem Ur Rehman Vs UT of J&K 2023 LiveLaw (JKL) 284

Director, Estates Department, Jammu Vs Avtar Krishan 2023 LiveLaw (JKL) 285

Kewal Krishan Vs Financial Commissioner ACS Home Department and ors 2023 LiveLaw (JKL) 286

Executive Engineer, Dal Lake Division-I Vs Mousvy Industries Budgam 2023 LiveLaw (JKL) 287

DR. INSHA ABID Vs UNION OF INDIA & ORS 2023 LiveLaw (JKL) 288

Sajad Ahmad Dar v. Union Territory of Jammu & Kashmir 2023 LiveLaw (JKL) 289

Madhu Bakshi Vs ACB Kashmir 2023 LiveLaw (JKL) 290

Jagar Singh Vs UT of J&K 2023 LiveLaw (JKL) 291

Peerzada Shah Fahad Vs UT of J&K & Anr 2023 LiveLaw (JKL) 292

Adil Farooq Bhat Vs VC Central University Kashmir 2023 LiveLaw (JKL) 293

Sunita Wali Vs UOI and others 2023 LiveLaw (JKL) 294

Jahangeer Ahmad Mugloo Vs UT of J&K 2023 LiveLaw (JKL) 295

Davinder Kumar Batra Vs The Authority Under Payment of Wages Act 1936 and Ors 2023 LiveLaw (JKL) 296

Executive Engineer, Dal Lake Division-I Vs Mousvy Industries Budgam 2023 LiveLaw (JKL) 297

M/S FAROOQ AHMAD MIR Vs UT OF J&K AND ORS 2023 LiveLaw (JKL) 298

STATE OF J&K Vs FEROZ AHMAD NAJAR & ANR 2023 LiveLaw (JKL) 299

Nazir Ahmad Najar Vs UOI 2023 LiveLaw (JKL) 300

Hakeem Muzafar Khaliq Vs Inspector General, Crime Branch, Srinagar 2023 LiveLaw (JKL) 301

Judgments/Orders:

Court's Discretion To Extend Time To File Written Statement Beyond 120 Days Revoked By Amendments To J&K CPC: High Court

Case Title: Abdul Rehman Nath V/s Umar Mohammad Beigh

Citation: 2023 LiveLaw (JKL) 278

The Jammu and Kashmir and Ladakh High Court held that in view of the substitution and addition of the proviso to Order VIII CPC, the legislature has taken away the discretion which was earlier vested with the court to extend the time to file the written statement beyond the 120 day period.

Justice Javed Iqbal Wani highlighted the implication of the amendment.

“The only inescapable conclusion emerges from above is that if a defendant fails to file his written statement within the prescribed time provided under Order VIII Rule (1), the right to file same shall stand forfeited and the Court can in no situation allow the same to be taken on record.

Objections U/S 47 CPC Must Be Raised At Initial Stages, Cannot Be Entertained Once Court Has Issued Order For Effective Execution: J&K High Court

Case Title: Dr. Abid Hussain Vs State (now Union Territory) of J&K

Citation: 2023 LiveLaw (JKL) 279

The Jammu and Kashmir and Ladakh High Court clarified that objections under Section 47 CPC must be raised at the initial stages of the execution application and these objections cannot be raised once the court has already exercised its jurisdiction, issued an order for effective execution, and called for a compliance report.

Furthermore, Justice Javed Iqbal Wani stressed that objections cannot be raised once the respondents have committed to implementing the judgment and decree.

UAPA | Plea For Default Bail Filed A Day Before Expiry Of Authorized Custody Period Not Maintainable: Jammu & Kashmir High Court

Case Title: Syed Irfan Abdullah Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 280

The Jammu and Kashmir and Ladakh High Court has made it clear that a plea for default bail filed a day before the expiry of authorized custody period under the Unlawful Activities (Prevention) Act (UAPA) is not maintainable.

Finding that the appellant in this case had moved an application for default bail on the 90th day of the 90-days authorized custody period, a bench of Justices Sanjeev Kumar and Rajesh Sekhri observed,

"In the instant case we find that the appellant had moved an application for default bail on 11-04-2023 which was the 90th day of the authorized custody of the appellant. That being so, the application moved by the appellant for default bail was stillborn and not maintainable in law, We cannot lose sight of the fact that the prosecution has now presented the challan after completing the investigation within the period authorized by the NIA Court”.

Orders Passed U/S 12 Domestic Violence Act Can't Be Assailed Directly U/S 482 CrPC Unless Remedy Of Appeal Is Availed: J&K High Court

Case Title: Mrs. Syed Asma Balki Vs. Mudasir Shibzada

Citation: 2023 LiveLaw (JKL) 281

The Jammu and Kashmir and Ladakh High Court clarified that orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) cannot be directly challenged under Section 482 of the Criminal Procedure Code (CrPC) unless the remedy of statutory appeal is availed.

Dismissing a petition under Section 482 assailing the orders passed by the Judicial Magistrate under Sec 12 of the DV Act, Justice Sanjay Dhar observed,

“Without going into the question, whether or not the proceedings under the D.V.Act are of civil in nature, one thing is clear that the remedy of appeal is available to the petitioner against the impugned order. Without availing the said remedy the petitioner could not have rushed to this Court to file proceedings under Section 482 Cr.P.C or by invoking revisional powers of this Court”.

Muslim Wife Can't Be Denied Maintenance When Factum Of Divorce Not Properly Established: Jammu & Kashmir High Court

Case Title: ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER

Citation: 2023 LiveLaw (JKL) 282

The Jammu and Kashmir High Court ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established.

The bench reasoned that denying maintenance would defeat the purpose of Section 488 of the Criminal Procedure Code (Pari Materia with sec 125 CrPC), which aims to provide temporary financial support to women during marital disputes.

Arbitration Clause In The Original Contract Would Also Apply To Inseparable Additional Work Carried Out Without Execution Of A Formal Agreement: J&K&L High Court

Case Title: A K Engineers and Contractors Pvt Ltd v. Union Territory of J&K

Citation: 2023 LiveLaw (JKL) 283

The Jammu & Kashmir and Ladakh High Court held that the arbitration clause contained in the original contract would also govern any dispute arising out of an additional work carried out without execution of a formal agreement.

The bench of Chief Justice N. Kotiswas Singh held that when a contractor, initially tasked with constructing a single-lane bridge, is subsequently directed by the employer to expand the scope to build a two-lane bridge without formalizing a new agreement or amending the original contract, the terms of the initial contract, including the arbitration clause, extend to cover the additional work.

NEET PG 2023 | Meritorious Reserved Category Candidates Entitled To Reserved Disciplines If Preferred Choice Unavailable In Open Merit: J&K High Court

Case Title: Nadeem Ur Rehman Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 284

The Jammu and Kashmir and Ladakh High Court ruled that a Meritorious Reserved Category Candidate (MRC) who secured admission in NEET-PG from the open merit category should be granted allocation to a discipline from the reserved category if their preferred choice is unavailable in the open merit category.

Highlighting the mandate of Rule 17 of the J&K Reservation Rules Justice Sanjay Dhar further clarified that the leftover discipline/stream/college in the open merit category shall thereafter be allocated to the reserved category candidate who would get selected consequent upon the reserved category candidate having been selected in open merit category.

J&K Public Premises Act | Employee's Right To Retain Govt Accommodation Limited To One Month Post-Retirement: High Court Upholds Demand Of Rent

Case Title: Director, Estates Department, Jammu Vs Avtar Krishan

Citation: 2023 LiveLaw (JKL) 285

The Jammu and Kashmir and Ladakh High Court made it clear that in terms of J&K Public Premises (Eviction of Unauthorized Occupants) Act 1988, a Govt. employee on his retirement can retain govt. accommodation for a period of one month and thereafter, he has no right whatsoever to retain the same.

Justice Wasim Sadiq Nargal observed,

“From a bare perusal of the regulations framed by the Government and also the provisions of Civil Services Regulation, it is manifestly clear that a Govt. employee on his retirement can retain govt. accommodation for a period of one month and thereafter, he has no right whatsoever to retain the same”.

Daily Diary Reports Must Contain Details Of 'Specific Activities' That Necessitated Preventive Detention: J&K High Court

Case Title: Kewal Krishan Vs Financial Commissioner ACS Home Department and ors.

Citation: 2023 LiveLaw (JKL) 286

Quashing a detention order against an individual under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Jammu and Kashmir and Ladakh High Court emphasised the indispensability of detailed and substantial grounds, especially in the context of Daily Diary Reports (DDRs),

Allowing a habeas corpus plea of the detenue, Justice Rajnesh Oswal said that the absence of essential details within such documents renders them insufficient to uphold the legitimacy of a preventive detention order.

Order 20 Rule 16 CPC | Not Mandatory To Pass Preliminary Decree In Every Suit For Accounts: J&K High Court

Case Title: Executive Engineer, Dal Lake Division-I Vs Mousvy Industries Budgam

Citation: 2023 LiveLaw (JKL) 287

Elucidating the application of Order 20 Rule 16 of the Civil Procedure Code (CPC), the Jammu and Kashmir and Ladakh High Court ruled that the Court is not mandated to pass a preliminary decree before a final decree in every suit for accounts. Instead, the decision depends on the unique facts and circumstances of each case, it clarified.

NEET PG - Candidates Taking Seat In 3rd Round AIQ Counselling Can't Withdraw Or Participate In Further Rounds : J&K&L High Court

Case Title: DR. INSHA ABID Vs UNION OF INDIA & ORS.

Citation: 2023 LiveLaw (JKL) 288

Affirming the irrevocable nature of the third round of counselling under the All India Quota for NEET-PG admissions, the Jammu and Kashmir and Ladakh High Court has ruled that candidates who secure a seat in the third round of counselling under the All India Quota are prohibited from withdrawing or participating in any subsequent counselling rounds.

Spotlighting Clause 1.5 of Chapter 1 of the Information Bulletin & Counselling Scheme for NEE-PG (MD/MS/DNB/MDS) Counselling, Justice Sanjay Dhar observed,

“From a perusal of the aforesaid Clause, it is clear that once a candidate joins in 3rd round of counselling in All India Quota, he/she cannot be allowed to resign from the 3rd round and he/she cannot be allowed to participate in further rounds of counselling after joining in 3rd round of counselling of All India Quota”.

'Tendency To Detain Critics Of Govt Abuse Of Preventive Detention Law' : High Court Quashes Detention Of Kashmir Journalist

Case : Sajad Ahmad Dar v. Union Territory of Jammu & Kashmir,

Citation: 2023 LiveLaw (JKL) 289

While quashing the detention of Kashmir-based journalist Sajad Ahmad Dar, the High Court of Jammu and Kashmir and Ladakh criticised the tendency of authorities to detain persons for simply being the critics of the government, terming it as an abuse of the preventive detention law.

"Such a tendency on the part of the detaining authority to detain the critics of the policies or commissions/ omissions of the Government machinery, as in the case of the present detenu- a professional media person, in our considered opinion, is an abuse of the preventive law," the Court observed in the judgment.

Investigating Agencies May Seize Passport But Not Impound It: Jammu & Kashmir High Court

Case Title: Madhu Bakshi Vs ACB Kashmir

Citation: 2023 LiveLaw (JKL) 290

Distinguishing between the powers of the police and the Passport Authority with regard to the seizing and impounding of passports, the Jammu and Kashmir and Ladakh High Court clarified that while the police may seize a passport under Section 102 of the CrPC, the impounding can only be done by the Passport Authority under Section 10(3) of the Passports Act.

Police Must Limit Surveillance Register Entries To Respect Citizen's Privacy, Fundamental Rights: J&K High Court

Case Title: Jagar Singh Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 291

The Jammu and Kashmir and Ladakh High Court urged the Police officers to strictly interpret and limit Surveillance Register entries to respect citizen's fundamental freedoms, ensuring unobtrusive and lawful surveillance.

Justice Javed Iqbal Wani added that surveillance must not intrude to compromise individual dignity and the rules governing Surveillance Register entries and surveillance methods should acknowledge the caution and care required by police officers in these procedures.

Lowering India's Reputation Not 'Terrorist Act'; Holding So Would Mean Any Criticism Of Centre Will Be UAPA Offence : J&K&L High Court

Case Title: Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr.

Citation: 2023 LiveLaw (JKL) 292

While granting bail to Kashmir-based news journalist Peerzada Shah Fahad, the High Court of Jammu and Kashmir and Ladakh rejected an argument raised by the National Investigation Agency (NIA) that any act affecting India's dignity and lowering the country's global image will be a 'terrorist act' as defined under the Unlawful Activities Prevention Act.

If this argument is accepted, it would mean that any criticism of the Central Government will be a 'terrorist act' the division bench comprising Justice Atul Sreedharan and Justice Mohan Lal observed.

Fundamental Right To Education Doesn't Extend To Candidates Ineligible To Appear In Examinations: J&K High Court

Case Title: Adil Farooq Bhat Vs VC Central University Kashmir.

Citation: 2023 LiveLaw (JKL) 293

Drawing a line between upholding a fundamental right and ensuring that academic prerequisites remain an indispensable criterion for students seeking to sit for examinations, the Jammu and Kashmir and Ladakh High Court observed that while the right to education is a fundamental right, its essence does not stretch to endorsing the participation of ineligible candidates in examinations.

Private Dispute Between Employer-Employee Not Amenable To Writ Jurisdiction Unless Statutory Violations Demonstrated: J&K High Court

Case Title: Sunita Wali Vs UOI and others

Citation : 2023 LiveLaw (JKL) 294

Highlighting the boundaries of writ jurisdiction in employment-related disputes, the Jammu and Kashmir and Ladakh High Court observed that not all disputes between employers and employees are amenable to the writ jurisdiction.

A bench of Justice Rajnesh Oswal clarified that a private dispute between the employer and the employee qua the contract of service without demonstrating any statutory violation by the employer does not warrant indulgence by the Court.

Preventive Detention | J&K High Court Orders Compassionate Release Of Detenu To Mourn Brother's Demise

Case Title: Jahangeer Ahmad Mugloo Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 295

While granting temporary release to a person under preventive detention, the Jammu & Kashmir and Ladakh High Court observed that the stringent provisions outlined in Section 13 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act) do not serve as a hindrance for a constitutional court exercising its jurisdiction under Article 226 of the Constitution to order release of a detainee.

S.25FFF ID Act | Enterprise Shutting Due To Financial Difficulties Not 'Unavoidable Circumstance' To Deny Retrenchment Compensation: J&K High Court

Case Title: Davinder Kumar Batra Vs The Authority Under Payment of Wages Act 1936 and Ors.

Citation: 2023 LiveLaw (JKL) 296

The Jammu and Kashmir and Ladakh High Court ruled that the closure of an enterprise due to financial difficulties cannot be deemed an "unavoidable circumstance" under Section 25-FFF of the Industrial Disputes Act, thereby reinforcing the entitlement of employees to retrenchment compensation.

Citing the explanation to Section 25-FFF of the Industrial Disputes Act, Justice Wasim Sadiq Nargal observed,

“..where an undertaking is closed down due to financial difficulties which is the case in the present petition, shall not be deemed to be closed down on account of unavoidable circumstances beyond control of the employer”.

CPC | Proprietary Concerns Can File Suits Provided Complete Details Of Owner Are Disclosed In Plaint: J&K High Court

Case Title: Executive Engineer, Dal Lake Division-I Vs Mousvy Industries Budgam

Citation: 2023 LiveLaw (JKL) 297

The Jammu & Kashmir and Ladakh High Court ruled that a suit by a proprietary concern of a sole proprietor or under an assumed business name is maintainable, provided complete details of the owner are disclosed in the plaint.

Clarifying the law on the subject of suits filed by proprietary concerns, Justice Javed Iqbal Wani observed,

“..A suit by a proprietary concern of a sole proprietor or by the assumed business name or style of a person seems to be maintainable; only legal requirement being that when such a suit is filed, complete details of the owner of the proprietary concern or assumed business name should be disclosed in the plaint as required under Order 7 Rule 1 of the Code to establish the identity of the owner of the proprietary concern or the assumed business name".

Non-Adherence Of Codal Formalities No Ground To Deny Contractor's Dues After Work Completion: Jammu & Kashmir High Court

Case Title: M/S FAROOQ AHMAD MIR Vs UT OF J&K AND ORS

Citation: 2023 LiveLaw (JKL) 298

The Jammu and Kashmir and Ladakh High Court said that the Government cannot deprive a contractor of his dues after work completion, by raising a plea that codal formalities at the time of allocation of the work had not been not adhered to.

Justice Sanjay Dhar said that the adherence to codal formalities is an internal mechanism of the Department and once they had allotted a contract for which work had been executed, they were bound to release the dues in favour of the contractor for the work done.

Contradiction On Case's Crucial Aspects Totally Discredits Witness Statement, Makes It Unreliable: Jammu & Kashmir High Court

Case Title: STATE OF J&K Vs FEROZ AHMAD NAJAR & ANR.

Citation: 2023 LiveLaw (JKL) 299

The Jammu & Kashmir and Ladakh High Court observed that the successful contradiction of a witness's statement on crucial aspects of a case would totally discredit their account and render it unreliable and untrustworthy.

A bench of Justice Sanjay Dhar observed:

“It is true that even if defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness but when the contradiction relates to vital aspects of the case and the version of occurrence given in previous statement by a witness is entirely different from the version of occurrence given by such witness during the trial of the case, it does definitely make the statement of such witness unreliable and untrustworthy”.

'Seema Suraksha Bal' A Central Force With Pan India Presence, Its Orders Subject To Challenge Across All High Courts: J&K High Court

Case Title: Nazir Ahmad Najar Vs UOI

Citation: 2023 LiveLaw (JKL) 300

The Jammu and Kashmir & Ladakh High Court upon quashing the removal order of a Sashastra Seema Bal (SSB) Constable observed that the Seema Suraksha Bal (SSB), is a force of the Union of India with a pan-India presence, making orders passed by it appealable before any of the High Courts in the country.

J&K Reservation Act 2004 | Social Caste Certificate Can Only Be Cancelled By Deputy Or Divisional Commissioner: High Court

Case Title: Hakeem Muzafar Khaliq Vs Inspector General, Crime Branch, Srinagar

Citation: 2023 LiveLaw (JKL) 301

The Jammu and Kashmir and Ladakh High Court quashed an order cancelling the Other Social Caste (OSC) Certificate of the petitioner while observing that the Additional Deputy Commissioner lacked the authority to cancel such certificates.

A bench of Justice Wasim Sadiq Nargal has clarified that if any person is aggrieved by the issuance of an OSC certificate by the competent authority under section 16 of the Reservation Act, only the Deputy Commissioner or Divisional Commissioner can entertain an appeal and cancel the same if issued in violation of rules.