Nominal Index : [Citations 168 - 200] Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Ors 2022 LiveLaw (JKL) 168 Mohd Hussain Vs Shabnam Ara 2022 LiveLaw (JKL) 169 Custodian General Vs J&K Special Tribunal 2022 LiveLaw (JKL) 170 Cadila Pharmaceuticals Ltd Vs Drug Inspector Kathua 2022 LiveLaw (JKL) 171 Cipla Ltd Vs State of J&K 2022 LiveLaw (JKL)...
Nominal Index : [Citations 168 - 200]
Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Ors 2022 LiveLaw (JKL) 168
Mohd Hussain Vs Shabnam Ara 2022 LiveLaw (JKL) 169
Custodian General Vs J&K Special Tribunal 2022 LiveLaw (JKL) 170
Cadila Pharmaceuticals Ltd Vs Drug Inspector Kathua 2022 LiveLaw (JKL) 171
Cipla Ltd Vs State of J&K 2022 LiveLaw (JKL) 172
Ravinder Kumar Gupta Vs UT of J&K 2022 LiveLaw (JKL) 173
Bashir Ahmed Vs UT of J&K 2022 LiveLaw (JKL) 174
Syed Afshana Bhat Vs University of Kashmir & Ors 2022 LiveLaw (JKL) 175
Bimla Ji Bhat & Ors Vs Union of India 2022 LiveLaw (JKL) 176
Murtaza Rashid Vs UT of J&K 2022 LiveLaw (JKL) 177
Showkat Ahmad Rather Vs Govt of J&K 2022 LiveLaw (JKL) 178
Abdul Majeed Bhat Vs UT of J&K 2022 LiveLaw (179)
Shameema Akhter Vs Abdul Jabbar Lone 2022 LiveLaw (JKL) 180
Sajad Tariq and Ors Vs Com Secy Youth Service and Sports 2022 LiveLaw (JKL) 181
Nazir Ahmad Ganai Vs State of J&K 2022 LiveLaw ( JKL) 182
Rupesh Kumar Vs UT of J&K 2022 LiveLaw (JKL) 183
Bashir Ahmad Khan & Ors Vs UT of J&K & Ors 2022 LiveLaw (JKL) 184
Bahu Builders and Traders Jammu Pvt. Ltd Vs J&K Dharmarth Trust & Ors 2022 LiveLaw (JKL) 185
Syed Akeel Shah Vs Directorate of Enforcement 2022 LiveLaw (JKL) 186
Ravinder Gupta Vs UT of J&K 2022 LiveLaw (JKL) 187
Indra Thakur Vs State of J&K 2022 LiveLaw (JKL) 188
State of J&K Vs Bhumesh 2022 LiveLaw (JKL) 189
S Rawail Singh Vs Gurinder Jeet Kour 2022 LiveLaw (JKL) 190
Ab Rasheed Bhat Vs HDFC Bank 2022 LiveLaw (JKL) 191
Syed Akeel Shah vs Directorate Of Enforcement 2022 LiveLaw (JKL) 192
Shailender Parihar Vs Sarmad Hafez 2022 LiveLaw (JKL) 193
Mohammad Anwar Chowdhary & Ors Vs UT of J&K 2022 LiveLaw (JKL) 194
Green Valley Sumo Taxi Stand Union Vs UT of J&K & Ors 2022 LiveLaw (JKL) 195
Mohd. Bashir Vs UT of J&K 2022 LiveLaw (JKL) 196
Ms. X (Minor) Vs. UT of J&K and others 2022 LiveLaw (JKL) 197
Raheela Nazir Vs J&K EDI 2022 LiveLaw (JKL) 198
Amina Begum Vs State of J&K & Ors 2022 LiveLaw (JKL) 199
State of J&K through police station Zainapora vs Zia Mustafa and others 2022 LiveLaw (JKL) 200
Judgements/Orders :
Case Title : Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Ors.
Citation : 2022 LiveLaw (JKL) 168
The Jammu and Kashmir and Ladakh High Court cautioned the civil courts that while exercising their jurisdiction utmost care should be taken to ensure that a consent decree is not sought to achieve sinister purposes like avoiding registration of sale deeds or paying stamp duty.
"A collusive decree cannot be used as a cloak for the sale deed. There could be numerous occasions where parties in collusion with each other may approach the civil Courts for passing the decrees in contravention of law and for achieving the unlawful objects," Said Justice Sanjeev Kumar in a judgement.
Case Title :Mohd Hussain Vs Shabnam Ara
Citation : 2022 LiveLaw (JKL) 169
The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate would be well within its jurisdiction to cancel the interim order passed by it under Section 12 of the Domestic Violence Act, if upon going through the response of the husband and his relatives, it finds that they have been unnecessarily roped in or no case for grant of interim order is made out.
Case Title :Custodian General Vs J&K Special Tribunal
Citation : 2022 LiveLaw (JKL) 170
Determining several important legal questions pertaining to the cases under the Evacuees Property Act, the Jammu and Kashmir and Ladakh High Court held that J&K Special Tribunal can exercise powers of revision against the orders passed by the Custodian General, Evacuee Property.
Case Title :Cadila Pharmaceuticals Ltd Vs Drug Inspector Kathua
Citation : 2022 LiveLaw (JKL) 171
The Jammu and Kashmir and Ladakh High Court ruled that where a company is alleged to have committed a criminal offence and is liable to be prosecuted even without impleading its Directors/persons responsible for conduct of its day to day business, upon conviction, the said company can be sentenced to punishment of fine, even though the offence for which the company has been convicted carries punishment of imprisonment as well.
Case Title :Cipla Ltd Vs State of J&K
Citation : 2022 LiveLaw (JKL) 172
The Jammu and Kashmir and Ladakh High Court ruled that once it is established that the valuable right of the accused under Section 25(3) of the Drugs and Cosmetics Act 1940 to adduce evidence in controversion of the Government Analyst's report is defeated due to acts and omissions of the Drugs Inspector, prosecution against the accused deserves to be quashed.
Case Title :Ravinder Kumar Gupta Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 173
The Jammu & Kashmir & Ladakh High Court, while quashing a detention order under J&K Public Safety Act, recently ruled that acts of land grabbing do not fall within the purview of the activities prejudicial to the maintenance of public order as per the provisions of the Jammu and Kashmir Public Safety Act, 1978
Case Title :Bashir Ahmed Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 174
The Jammu and Kashmir and Ladakh High Court observed that the nature of service of a police official cannot be equated with the nature of any other service and a person who has been convicted of a criminal charge is definitely not fit to serve as police official/officer.
"Even otherwise, once the petitioner was convicted of a criminal charge, even though, he was granted benefit of probation, it was open to the respondents to refuse to take him back in service, because the service of police department is not like service of any other department. A person, who has been convicted of a criminal charge is definitely not fit to serve as police official/officer not even as an SPO". Justice Sanjay Dhar observed.
Case Title : Syed Afshana Bhat Vs University of Kashmir & Ors
Citation : 2022 LiveLaw (JKL) 175
The Jammu and Kashmir and Ladakh High Court ruled that period of ad hoc or temporary services of more than one year duration is provided to be counted for direct recruitment or promotion under Career Advancement Scheme of Teacher, subject to the condition laid down in Clause 10.1 of the UGC Regulations 2010.
Case Title : Bimla Ji Bhat & Ors Vs Union of India.
Citation : 2022 LiveLaw (JKL) 176
The Jammu and Kashmir and Ladakh High Court recently ruled that an employee cannot be denied medical reimbursement solely on the ground that he had undergone treatment in a speciality hospital by himself, which was not at all recognized or approved by the State or not included in the Government order.
"The amount of medical reimbursement is constitutional obligation towards sufferer which is a beneficial legislation in a welfare State for its employees, therefore, the rules and instructions formulated should be construed liberally in favour of the employees for granting them the relief rather than to adopt the wooden attitude to deprive the person of his/her dues."
Case Title: Murtaza Rashid Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 177
The Jammu and Kashmir and Ladakh High Court said that the disclosure of confidential and sensitive information in the grounds of detention of a person detained under Public Safety Act [PSA] can be counter-productive to the maintenance of normalcy in the Valley.
The bench of Chief Justice Pankaj Mithal and Justice Moksha Kazmi Khajuria observed:
"It may be worth noting that nothing more as revealed in the grounds of detention could have been spelt out as it would have been counter-productive to the maintenance of security of the State and normalcy in the valley. The situation in the valley does not permit disclosure of any further confidential or sensitive information which if goes in the hands of the separatist group would certainly be a great threat to the nation".
Case Title :Showkat Ahmad Rather Vs Government of J&K
Citation : 2022 LiveLaw (JKL) 178
The Jammu & Kashmir & Ladakh High Court ruled that an unaided private educational institution may qualify to be a "Public authority" amenable to writ jurisdiction of High Court, however, a mandamus will not be issued unless action of such authority complained of falls in the domain of public law as distinguished from private law.
"Simply because a private unaided institution is amenable to writ jurisdiction does not mean that every dispute concerning such private institution also becomes ipso facto amenable to writ jurisdiction," the court stated.
Case Title :Abdul Majeed Bhat Vs UT of J&K
Citation : 2022 LiveLaw (179)
The Jammu and Kashmir and Ladakh High Court ruled that merely because the FSL report did not accompany the charge sheet at the time of its presentation, it cannot be said that the charge sheet was incomplete or defective.
Conjoint reading of Section 36A of NDPS Act and Section 167 of Cr. P. C, it becomes clear that if an accused has been detained in connection with investigation of a case for a period of more than 180 days in an offence under NDPS Act, he is entitled to be released on bail if he is prepared to and does furnish bail unless the Special Court has extended the period of detention during investigation of the case beyond 180 days, recorded Justice Sanjay Dhar.
Case Title: Shameema Akhter Vs Abdul Jabbar Lone
Citation: 2022 LiveLaw (JKL) 180
The Jammu and Kashmir and Ladakh High Court ruled that in a suit for perpetual injunction, it is necessary for the plaintiff to establish the title for grant of perpetual injunction, claiming settled possession over the property in question.
"Injunction may be granted, even against the true owner of the property only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him except in due process of law", Justice M A Chowdhary recorded.
Case Title : Sajad Tariq and Ors Vs Com Secy Youth Service and Sports.
Citation : 2022 LiveLaw (JKL) 181
The Jammu and Kashmir and Ladakh High Court observed that there is a sound logic predicated in the interest of the candidates figuring in the waiting list and the intention behind is not to hold further selection for the post already advertised and to save the public exchequer from the unnecessary expenditure.
"The respondents cannot frustrate the intention behind and purpose of preparation of select list/ waiting list. It is not a case where the respondents have stopped at framing the wait list saying that it has been framed inadvertently and shall be deemed to have been cancelled, they have gone beyond and made it effective and issued the orders of engagement also", the bench added.
Case Title : Nazir Ahmad Ganai Vs State of J&K.
Citation : 2022 LiveLaw ( JKL) 182
The Jammu and Kashmir and Ladakh High Court reiterated that for arraigning an additional accused during the trial, there has to be much stronger evidence against him than mere probability of his involvement in the crime.
"Even a Magistrate, on taking cognizance of the offence which in his opinion has been committed by a person who is not before him and there is sufficient ground for proceeding against him, is empowered to issue process for summoning of such person under Section 204 of Cr. P. C. Section 190(1)(b) of the Cr. P. C does not restrict power of a Magistrate to proceed against an offender merely because in the police report his name is not sent up as an accused," Justice Sanjay Dhar explained.
Case Title : Rupesh Kumar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 183
The Jammu and Kashmir and Ladakh High Court reiterated that unexplained delay in execution of warrant of detention throws a serious and considerable doubt on the genuineness of subjective satisfaction of the Detaining Authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner.
Bashir Ahmad Khan & Ors Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 184
Finding fault with the stance of the lower Court, the bench comprising Justice Rahul Bharti observed:
"Sections are substratum of the Code whereas the First Schedule bearing compartmentalization of the rules into Orders are the turf part of the Code at which processing and progression of stage wise adjudication/trial of a cause/suit/appeal before a civil court of law gets carried out and conducted to its finality."
Case Title: Bahu Builders and Traders Jammu Pvt. Ltd Vs J&K Dharmarth Trust and others.
Citation: 2022 LiveLaw (JKL) 185
The Jammu and Kashmir and Ladakh High Court reiterated that before deciding to drop proceedings in a criminal complaint, the Court has to be satisfied that the subject matter involved in the complaint is a purely civil wrong and that it has no criminal texture to it.
Syed Akeel Shah Vs Directorate of Enforcement & Ors.
Citation : 2022 LiveLaw (JKL) 186
The Jammu and Kashmir and Ladakh High Court observed that Section 8(4) of the PMLA Act clearly provides that the authorized officer can forthwith take over possession of the attached property once the order of provisional attachment is confirmed by the Adjudicating Authority.
It clarified that the expression "forthwith" used in Section 8(4) of the Act denotes clear intention of the legislature not to wait for the period of limitation prescribed for filing of appeal under Section 26 of the Act.
Ravinder Gupta Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 187
The Jammu and Kashmir and Ladakh High Court ruled that merely because a number of FIRs stand registered against a person he cannot be denied concession of bail, particularly, when his involvement in commission of a non-bailable offence is not prima facie shown from the contents of the FIR.
"It would be premature for this Court to deeply analyze the allegations made in the FIR lest it may prejudice the case of the prosecution. However, there appears prima facie merit in the submission made by the learned counsel for the petitioner that the dispute between the petitioner and the complainant appears to be essentially relating to demarcation of the land or at best a case of criminal trespass", the bench noted.
Indra Thakur Vs State of J&K.
Citation: 2022 LiveLaw (JKL) 188
The Jammu and Kashmir and Ladakh High Court ruled that in the absence of any dishonest motive or intention on the part of public servant, criminal prosecution cannot be launched against him or her under the Prevention of Corruption Act.
Justice Sanjay Dhar while quashing the FIR to the extent of the petitioner for not disclosing commission of any cognizable offence by the petitioner concluded, "In the absence of any dishonest motive or intention on the part of the issuing authority and in the absence of any material to show that the petitioner had connived with the competent authority, it cannot be stated that any offence is made out against the petitioner".
Case Title : State of J&K Vs Bhumesh Sharma.
Citation : 2022 LiveLaw (JKL) 189
The Jammu and Kashmir and Ladakh High Court ruled that the power to compulsorily retire a government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. Such an order cannot be passed merely on the recommendation of the committee devoid of departmental inquiry and sufficient material to form bona fide opinion by the competent authority, it added.
Case Title : S Rawail Singh Vs Gurinder Jeet Kour.
Citation : 2022 LiveLaw (JKL) 190
The Jammu and Kashmir and Ladakh High Court ruled that once a marriage stands validly dissolved by a competent foreign court, the "domestic relationship" between the parties as husband and wife, which is necessary to invoke the provisions of the Domestic Violence Act, also ceases.
Interpreting Section 2(f) of the Domestic Violence Act which defines 'domestic relationship', the bench explained that in the instant case there is no domestic relationship existing between the parties and when the domestic relationship is not existing between the parties the provisions of the Domestic Violence Act cannot be invoked.
Case Title : Ab Rasheed Bhat Vs HDFC Bank.
Citation : 2022 LiveLaw (JKL) 191
The Jammu and Kashmir and Ladakh High Court ruled that the production of original Power of Attorney is not necessary at the time of taking cognizance of the complaint under Section 138 of Negotiable Instruments Act.
A bench of Justice Sanjay Dhar observed,
"When the complainant/payee is a company, an authorised employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorised or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial".
Case Title : Syed Akeel Shah vs Directorate Of Enforcement.
Citation : 2022 LiveLaw (JKL) 192
The Jammu and Kashmir and Ladakh High Court observed that the question whether a particular case is of exceptional nature or not to warrant action under Section 8(4) of Prevention of Money Laundering Act can be determined only by the appellate authority at the time of considering the merits of the appeal and not by a Court in exercise of its writ jurisdiction.
Case Title : Shailender Parihar Vs Sarmad Hafez.
Citation : 2022 LiveLaw (JKL) 193
The Jammu and Kashmir and Ladakh High Court observed that the expression "Application of Mind" is not meant as a matter of usage for ritual sake but is a living principle of law out of which an administrative/ judicial/ quasi judicial decision, as the case may be, must bear its natural delivery.
Application of mind" used frequently in legal parlance, the bench observed that any public official/authority, be it judicial, quasi judicial and/or administrative one, who knows it as a fact that he is meant to judge/decide matters being part of the very constitution of the office/position held/occupied by him/it, must be made to know it compulsively and consciously without any miss that there is and will be an ever present institutional demand upon his/its understanding to make a decision, which if and upon being questioned, by any aggrieved person who is to suffer the effects of the given decision, is able to self exhibit its factuality and legality so evidently and expressly so as to test and tax the wit of the person in questioning the given decision. This is what is and will be meant in real sense and spirit an act of application of mind on the part of the maker of the judgment/decision, Justice Rahul Bharti expounded.
Case Title : Mohammad Anwar Chowdhary & Ors Vs UT of J&K.
Citation : 2022 LiveLaw (JKL) 194
The Jammu & Kashmir & Ladakh High Court upheld the amendments to the Jammu and Kashmir Reservation Rules, 2005, by which 4 percent reservation was provided to 'Pahari Speaking People' in respect of each service, class, category and grade in services and posts under the Union Territory.
Case Title : Green Valley Sumo Taxi Stand Union Vs UT of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 195
The Jammu and Kashmir and Ladakh High Court dismissed a plea seeking exemption from the requirement of installing Vehicle Location Tracking Devices (VLTD) and Panic Buttons in public service vehicles till establishment of Command and Control centres in the union territory.
Justice Sanjeev Kumar said the "court cannot issue a writ of mandamus to the authorities for acting contrary to the statutory Rules."
Case Title : Mohd. Bashir Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 196
Jammu & Kashmir and Ladakh High Court took suo moto notice of the lack of "even elementary knowledge" regarding land laws displayed by an Additional Deputy Commissioner in Rajouri district who is conferred with powers of Commissioner under the Agrarian Reforms Act, 1976 and that of Collector under the Land Revenue Act, 1996.
A bench of Justice Rahul Bharti thus directed the Financial Commissioner Revenue/ Commissioner, Agrarian Reforms to withdraw such powers from the concerned official.
Case Title: Ms. X (Minor) Vs. UT of J&K and others
Citation: 2022 LiveLaw (JKL) 197
The Jammu and Kashmir and Ladakh High Court directed a medical board in Srinagar to undertake a fresh examination of a minor rape victim to take a final call on her request for termination of pregnancy of 22-23 weeks.
"Should the respondents 2 and 3 on the basis of said medical opinion/report decide to undertake termination of pregnancy of the petitioner-victim, necessary measures be also taken for preserving of DNA samples of the fetus. Needless to mention here that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken," said Justice Javed Iqbal Wani in the order.
Case Title : Raheela Nazir Vs J&K EDI
Citation : 2022 LiveLaw (JKL) 198
The Jammu and Kashmir and Ladakh High Court ruled that an order of appointment with a stipulation that the services are terminable by one month's notice of either side loses its significance when it was not resorted to during the initial period of contract.
Case Title : Amina Begum Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 199
The Jammu and Kashmir and Ladakh High Court observed that unauthorized occupation by the state of an immovable property of its citizens gives recurring cause of action to the aggrieved citizen and therefore, delay and latches cannot come in the way of such citizen to assert his rights before constitutional court.
Elaborating on the application of Doctrine of Waiver and Doctrine of Estoppel to the case at hand the bench explained that state cannot plead adverse possession in respect of the land of its citizens under its unauthorized occupation and the plea of waiver and estoppel is not attracted in such situation.
Case Title: State of J&K through police station Zainapora vs Zia Mustafa and others
Citation: 2022 LiveLaw (JKL) 200
The Jammu & Kashmir and Ladakh High Court o allowed a revision petition of J&K Police in the 2003 Nadimarg massacre case — the verdict means the trial which had abruptly halted more than a decade back can now resume.
Justice Vinod Chatterji Koul ordered the trial court to take all necessary measures for ensuring examination of witnesses by "issuing commission and/or recording" their statements through videoconferencing.
The trial court shall ensure expeditious proceedings so as to conclude the matter at the earliest, said Justice Koul.