Nominal Index [Citations 144 - 168]:Ghulam Nabi Mir Vs UT of J&K 2023 LiveLaw (JKL) 144Makhan Lal Vs UT of J&K 2023 LiveLaw (JKL) 145Rahul Kumar Vs UT of J&K 2023 LiveLaw (JKL) 146Ravi Kumar Vs UT of J&K 2023 LiveLaw (JKL) 147Rajni Devi Vs State of J&K 2023 LiveLaw (JKL) 148Hakim Din Vs Akbar Noor & Ors 2023 LiveLaw (JKL) 149Union of India v. S.P. Singla Construction...
Nominal Index [Citations 144 - 168]:
Ghulam Nabi Mir Vs UT of J&K 2023 LiveLaw (JKL) 144
Makhan Lal Vs UT of J&K 2023 LiveLaw (JKL) 145
Rahul Kumar Vs UT of J&K 2023 LiveLaw (JKL) 146
Ravi Kumar Vs UT of J&K 2023 LiveLaw (JKL) 147
Rajni Devi Vs State of J&K 2023 LiveLaw (JKL) 148
Hakim Din Vs Akbar Noor & Ors 2023 LiveLaw (JKL) 149
Union of India v. S.P. Singla Construction Pvt. Ltd 2023 LiveLaw (JKL) 150
Raja Sajad Ahmad Wan Vs State of J&K 2023 LiveLaw (JKL) 151
M/s Best Crop Science Industrial Area Versus Union of India 2023 LiveLaw (JKL) 152
Mahant Subash Shah Vs Kabir Singh & Anr 2023 LiveLaw (JKL) 153
State of J&K Vs Davinder Kumar & Ors 2023 LiveLaw (JKL) 154
State (now UT) of J&K Vs Bashir Ahmad 2023 LiveLaw (JKL) 155
Shukal Singh Vs v/s G.M., Jammu Co-Operative Wholesale Ltd.& Anr 2023 LiveLaw (JKL) 156
M/S Shaf Sons through Gowhar Ahmad Mir & Another Vs Jammu & Kashmir Bank Ltd. & Ors 2023 LiveLaw (JKL) 157
Mohammad Sultan Nagoo vs Custodian Evacuee Property and others 2023 LiveLaw (JKL) 158
Ravinder Singh Vs J&K Sports Council 2023 LiveLaw (JKL) 159
Naseema Begum Vs UT of J&K 2023 LiveLaw (JKL) 160
Chajju Singh Bharat Bhushan Gupta Vs Subash Aggarwal and others Chajju Singh and ors 2023 LiveLaw (JKL) 161
Mst Jana Vs State of J&K 2023 LiveLaw (JKL) 162
Mohd Sharief and others Vs State of J&K 2023 LiveLaw (JKL) 163
National Insurance Co. Ltd. Subash Chander Vs Subash Chander and others. National Insurance Company Ltd 2023 LiveLaw (JKL) 164
State of J&K Vs Sham Lal 2023 LiveLaw (JKL) 165
M/s Ali Shah through Arif Ahmad Shah Versus Union of India and others 2023 LiveLaw (JKL) 166
Monica Pathania Vs State of J&K 2023 LiveLaw (JKL) 167
M/S VJ Jindal Cocoa Pvt. Ltd Vs Union of India and others 2023 LiveLaw (JKL) 168
Judgments/Orders:
Jammu & Kashmir High Court Says Bid Security Is Indispensable In Tendering Process, Rejects Substitution With Performance Security
Case Title: Ghulam Nabi Mir Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 144
The Jammu and Kashmir and Ladakh High Court said that bid security cannot be substituted by performance security as both are distinguishable and are submitted on different stages of the tender process.
S.446 CrPC | Accused Must Be Given Opportunity Before Court Records Satisfaction As To Breach Of Bond: Jammu & Kashmir High Court
Case Title: Makhan Lal Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 145
Stressing on the need to ensure fairness and due process in cases where breach of a bond under Section 446 CrPC is alleged, the Jammu and Kashmir and Ladakh High Court has said it is mandatory that the court issues a notice first, providing the accused an opportunity to explain any alleged breaches.
If the court remains unsatisfied with the explanation provided by the accused, only then can it proceeds to record its satisfaction of such breach, it clarified.
Leniency In Matters Involving Unnatural Offences Not Only Undesirable, But Also Against Public Interest: Jammu & Kashmir High Court
Case Title: Rahul Kumar Vs UT of J&K
Citation: 2023 LiveLaw (JKL) 146
Dismissing a bail application of a person in a case under Section 377, 506 IPC and Sections 4 & 5 of POCSO Act, the Jammu and Kashmir and Ladakh High Court observed that leniency in matters involving unnatural offences is not only undesirable, but also against public interest. Such types of offences are to be dealt with severity and with iron hands and leniency in such matters would be really a case of misplaced sympathy, said the court.
When Victim Avoids Stepping Into Witness Box, Such Conduct Sufficient To Entitle Accused To Bail: Jammu & Kashmir High Court In POCSO Case
Case Title: Ravi Kumar Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 147
Granting bail to an accused in a POCSO case, the Jammu and Kashmir and Ladakh High Court has said that simply because the prosecutrix keeps herself away from appearing in court, the plea for bail cannot be deferred indefinitely.
"It is not the case of the prosecution that trial is being delayed because of the conduct of the accused but it is a case where the victim is avoiding to step into the witness box. This conduct of the victim is sufficient to entitle the petitioner to the concession of bail," Justice Sanjay Dhar observed.
Case Title: Rajni Devi Vs State of J&K
Citation: 2023 LiveLaw (JKL) 148
The Jammu and Kashmir and Ladakh High Court reiterated that the actual purpose of Order 6 Rule 17 of the Code of Civil Procedure (CPC) in the legal system is to advance the cause of justice rather than impede it.
Expounding the law on the subject, Justice Javed Iqbal Wani observed that the underlying object of Order 6 Rule 17 Court should try the merits of the case that comes before it and should consequently allow the amendments that may be necessary for determining the real question in controversy between the parties, as ultimately the Courts exist for doing justice between the parties and not for punishing them.
Case Title: Hakim Din Vs Akbar Noor & Ors.
Citation: 2023 LiveLaw (JKL) 149
Differentiating the ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC, the Jammu and Kashmir High Court ruled that while Order-1 R-10 (2) enables the Court to add, substitute or strike down a person impleaded as party to the suit, Order-XXII R-4 on the other hand requires the plaintiff to bring legal heirs/representatives of a deceased defendant on record.
Therefore, where a case is covered by Order-XXII R-4, the provisions of Order-1 R-10 (2) stand excluded on the well known principle “general words do not derogate special provisions”, the court clarified.
Case Title: Union of India v. S.P. Singla Construction Pvt. Ltd.
Citation: 2023 LiveLaw (JKL) 150
The High Court of Jammu & Kashmir and Ladakh held that the requirement to refer the dispute to DAB, as per the GCC of FIDIC Contracts, is mandatory and the failure to comply with the provision results in making the dispute non-arbitrable.
The bench of Justice Vinod Chatterji Koul held that when the agreement between the parties provides for reference of claims to DAB as pre-arbitration requirement and also provides for the consequences for the non-compliance, the parties must necessarily follow the agreed procedure and failure would result in the claims becoming non-arbitrable.
Jammu & Kashmir High Court Acquits Man In 22 Years Old Rape Case
Case Title: Raja Sajad Ahmad Wan Vs State of J&K.
Citation: 2023 LiveLaw (JKL) 151
The Jammu and Kashmir and Ladakh High Court acquitted a man accused of having committed a rape about 22 years ago. It observed that non-examination of the material Prosecution witnesses i.e. the Doctor and the Investigating Officer, not only causes prejudice to the case of the accused, but also to the case of the Prosecution and creates a reasonable doubt against his involvement in the offence.
GST Budgetary Support Scheme Can’t Be Interpreted Liberally: J&K And Ladakh High Court
Case Title: M/s Best Crop Science Industrial Area Versus Union of India
Citation: 2023 LiveLaw (JKL) 152
The Jammu & Kashmir and Ladakh High Courts held that the GST Budgetary Support Scheme cannot be interpreted liberally.
The bench of Chief Justice N. Kotiswar Singh and Justice Vinod Chatterji Koul observed that the new scheme provides certain benefits by way of budgetary support to such units that were granted excise duty exemption under an earlier tax regime prior to the introduction of the GST regime. However, budgetary support is conditional and not blanket.
Case Title: Mahant Subash Shah Vs Kabir Singh & Anr
Citation: 2023 LiveLaw (JKL) 153
The Jammu and Kashmir and Ladakh High Court held that no appeal or revision would lie against an order allowing an application for condonation of delay accompanying an application filed under section 34 of the Arbitration and Conciliation Act for setting aside arbitral award.
A bench of Justice Javed Iqbal Wani said the legislature by using expression an appeal shall lie from the orders provided therein "and from no others" in Section 37 (Appealable orders) has taken away the right to appeal against all orders except specified in Section 37 (1) and (2).
Case Title: State of J&K Vs Davinder Kumar & Ors.
Citation: 2023 LiveLaw (JKL) 154
Upholding the acquittal of a Police officer in a 20 year old rape case, the Jammu and Kashmir and Ladakh High Court said that examination-in-chief of a witness cannot be taken into consideration to fasten any liability, unless the opposite party is afforded a reasonable opportunity to cross-examine said witness as regards information tendered by him in his examination-in-chief.
"It shall be highly unsafe to consider the chief examination of a witness, who is not subjected to cross examination and court in such circumstances, is left with no option, but to ignore such testimony", a bench of Justice Rajesh Sekhri observed.
Case Title: State (now UT) of J&K Vs Bashir Ahmad
Citation: 2023LiveLaw (JKL) 155
Terming the evidence of prosecution as highly unreliable, the Jammu and Kashmir and Ladakh High Court upheld the acquittal of alleged active members of Lashkar-e-Taiba, who as per prosecution were hell-bent upon creating unrest in the valley and had been indulging in the acts of sabotage and terrorist activities to dislodge the Governments.
Expressing serious reservations against the evidence that the prosecution had put forth before the trial court a bench of Justice MA Chowdhary observed,
“The story of the prosecution otherwise seems to be unreliable in view of the fact that the seven persons allegedly involved in terrorist activities and as alleged by the police to be members of Laskhar-e-Taiba a dreaded organization were sitting like ducks at a public place in Wildlife Sanctuary at Manda waiting for the police to be arrested without any reaction and despite availability of the weapon/explosives they had not used them to retaliate while being arrested by the police”.
Case Title: Shukal Singh Vs v/s G.M., Jammu Co-Operative Wholesale Ltd.& Anr.
Citation: 2023 LiveLaw (JKL) 156
The Jammu and Kashmir and Ladakh High Court clarified that Section 70 of the J&K Cooperative Societies Registration Act serves as an internal mechanism for resolving disputes among parties who already have a legal relationship with each other before the dispute arises. It cannot be applied to individuals who do not have any 'prior jural relationship' with the individuals involved in the society's affairs, it emphasised.
Case Title: M/S Shaf Sons through Gowhar Ahmad Mir & Another Vs Jammu & Kashmir Bank Ltd. & Ors.
Citation: 2023 LiveLaw (JKL) 157
The Jammu & Kashmir and Ladakh High Court held that dispatching of notice by a Bank under Section 13(2) of the SARFAESI Act, to the borrower to discharge in full his liabilities, is an official act with a presumption that it was performed regularly.
Section 114(e) of the Evidence Act establishes a presumption that judicial and official acts are performed regularly and in the context of the SARFAESI Act, the dispatching of a notice by a bank to a borrower falls under this category of official acts, a bench comprising Justices Atul Sreedhan and Mohal Lal emphasised.
Case Title: Mohammad Sultan Nagoo vs Custodian Evacuee Property and others.
Citation: 2023 LiveLaw (JKL) 158
The Jammu & Kashmir and Ladakh High Court has emphasised that the government has a responsibility to safeguard, maintain, and effectively utilize evacuee properties. It cannot make arbitrary decisions or treat these properties as if it is the rightful owner with the power to sell them off, it clarified.
Case Title: Ravinder Singh Vs J&K Sports Council.
Citation: 2023 LiveLaw (JKL) 159
The Jammu and Kashmir and Ladakh High Court observed that when exceptionally qualified candidates are not offered appointments, the State must provide valid and non-discriminatory reasons for its decision. The State, especially when it functions as an employer, is obligated to adhere to the principles outlined in Article 14 of the Constitution, it emphasised.
Case Title: Naseema Begum Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 160
The Jammu and Kashmir and Ladakh High Court has granted bail to a woman, accused of assisting the primary suspect in a POCSO case filed over alleged rape of her own daughter.
Presumption of guilt under Section 29 is rebuttable and if the accused can demonstrate to the court during the trial that there is material evidence contradicting the presumption of guilt, they may be granted bail, a bench of Justice Sanjay Dhar maintained.
Civil Court Can Seek Police Assistance To Enforce Temporary Injunctions: Jammu & Kashmir High Court
Case Title: Chajju Singh Bharat Bhushan Gupta Vs Subash Aggarwal and others Chajju Singh and ors.
Citation: 2023 LiveLaw (JKL) 161
The Jammu and Kashmir and Ladakh High Court said that while the Code of Civil Procedure (CPC) does not explicitly provide for police assistance in enforcing temporary injunctions, Section 151 of the Code allows the Civil Court to exercise inherent powers to ensure justice and prevent abuse of the court's process.
This provision grants the court the authority to direct the police to provide necessary assistance when there is disobedience or breach of its orders issued under Order XXXIX Rules 1 & 2 of the Code and hence enables the court to maintain the integrity of its orders and ensure the effective implementation of temporary injunctions, a bench of Justice Rajesh Sekhri observed.
Case Title: Mst Jana Vs State of J&K
Citation: 2023 LiveLaw (JKL) 162
Granting a compensation of an amount of Rs. 5 Lakh to the kin of an undertrial who was killed as a result of an attack by a co-prisoner inside Srinagar Central Jail, the Jammu and Kashmir and Ladakh High Court observed that the prison authorities cannot be absolved of their duty to ensure the safety and security of the undertrials.
"Even though the deceased was an undertrial in a murder case, the respondents were not absolved of their liability to ensure his safety and security in the jail. A prisoner cannot be deprived of his constitutional rights except in accordance with law," Justice Sanjay Dhar said.
J&K Land Acquisition Act | Collector Has No Power To Recall Or Review Compensation Award: High Court
Case Title: Mohd Sharief and others Vs State of J&K.
Citation: 2023 LiveLaw (JKL) 163
The Jammu and Kashmir and Ladakh High Court held that once an award has been made under Section 11 of the State Land Acquisition Act, 1990 the same is final and binding on the parties. The Collector has no authority to recall or review an award after it has been passed, it clarified.
Case Title: National Insurance Co. Ltd. Subash Chander Vs Subash Chander and others. National Insurance Company Ltd
Citation: 2023 LiveLaw (JKL) 164
The Jammu and Kashmir High Court underscored the critical role of accurate medical evidence in assessing disability and income for determining just compensation in motor accident claims.
A bench comprising Justice Sanjay Dhar has observed,
"In order to ascertain the nature of disability of an injured/claimant and its effect upon his earning capacity, the Tribunal has to make every effort to record the evidence of the Doctor who has treated the injured or who has assessed his permanent disability. Mere production of a disability certificate cannot be taken as proof of the extent of disability stated therein".
Case Title: State of J&K Vs Sham Lal
Citation: 2023 LiveLaw (JKL) 165
Highlighting the significance of Section 55 of the NDPS Act, the Jammu & Kashmir and Ladakh High Court has said that this provision was specifically introduced to deter any attempts to tamper with contraband. It stresses the crucial need for promptly transferring it to the secure storage of police stations and timely forwarding it to the Forensic Science Laboratory (FSL)
The burden lies on the prosecution to prove these crucial steps were followed and failure to demonstrate proper handling of contraband raises doubts about its authenticity and integrity, it maintained.
Case Title: M/s Ali Shah through Arif Ahmad Shah Versus Union of India and others
Citation: 2023 LiveLaw (JKL) 166
The Jammu & Kashmir And Ladakh High Court has dismissed a writ petition challenging a show cause notice regarding the export of banned yarn shawls.
The bench of Justice Vinod Chatterji Koul has observed that the act of respondents in seizing consignments or goods took place in Delhi, followed by other events including the issuance of show cause notices, etc., so it is the courts or forums in Delhi where the petitioner can lay his claim or raise his grievances.
Case Title: Monica Pathania Vs State of J&K
Citation: 2023 LiveLaw (JKL) 167
The Jammu & Kashmir High Court ruled in favour of a contractual government employee, stating that medical expenses incurred by her for her husband's treatment outside the erstwhile State should be reimbursed.
The court emphasized that the government's power to relax rules should be used genuinely, not just to decorate the "Rule Book," and should be exercised in cases where strict adherence to the rules would unfairly burden the beneficiary.
Case Title: M/S VJ Jindal Cocoa Pvt. Ltd Vs Union of India and others
Citation: 2023 LiveLaw (JKL) 168
The Jammu & Kashmir and Ladakh High Court ruled that the benefit provided under the Budgetary Support Scheme is not a 'right' of industrial units. Instead, it is regarded as a concession or incentive granted by the Government of India to assist these units in overcoming financial challenges resulting from the withdrawal of area-based exemptions under the Central Excise Act, it clarified