Jammu and Kashmir and Ladakh High Court Annual Digest 2023: Part I [Citations 1-150]

Gulshan Nazir Vs Union of India 2023 LiveLaw (JKL) 1

M/S Aisha Construction Vs JKCA 2023 LiveLaw (JKL ) 2

Manzoor Ahmad Mir Vs UT of J&K 2023 LiveLaw (JKL) 3

Godrej Consumer Products Limited Versus Union of India 2023 LiveLaw (JKL) 4

Mst Zaiba Vs Ghulam Ahmad Zargar & Ors 2023 LiveLaw(JKL) 5

Zahid Nabi Khan Vs UT of J&K 2023 LiveLaw (JKL) 6

Khazir Mohammad Naikoo Vs UT of J&K 2023 LiveLaw (JKL) 7

Nazir Ahmad Chopan Vs Abdul Rehman Chopan 2023 LiveLaw (JKL) 8

Ruqaya Akhter Vs UT Through Crime Branch 2023 LiveLaw (JKL) 9

Mst Haleema & Ors Vs Mst Dilshada & Ors 2023 LiveLaw (JKL) 10

JK Montessori School Vs State of J&K & Ors 2023 LiveLaw (JKL) 11

Fayaz Ahmad Rather Vs UT of J&K & Ors. 2023 LiveLaw (JKL) 12

Javaid Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 13

Kumar Avinav Vs State of J&K. 2023 LiveLaw 14

Rukhsana Jabeen Vs State of J&K 2023 LiveLaw (JKL) 15

Farooq Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 16

Sham Lal vs UT of J&K 2023 LiveLaw (JKL) 17

Shahid Hameed Vs UT of J&K 2023 LiveLaw (JKL) 18

Rahul Kumar & Ors Vs UT of J&K 2023 LiveLaw (JKL) 19

P N Sharma Vs Union Of India & Ors 2023 LiveLaw (JKL) 20

Asif Iqbal Naik Vs State of J&K & Ors 2023 LiveLaw (JKL) 21

Tajinder Singh alias Happy Vs UT of J&K & Ors 2023 LiveLaw (JKL) 22

Abdul Rashid Vs UT of J&K 2023 LiveLaw (JKL) 23

Prof S K Bhalla Vs Haq Nawaz Nehru 2023 LiveLaw (JKL) 24

Gopal Krishan & Ors Vs UT of J&K 2023 LiveLaw (JKL) 25

Parwez Samuel Koul & Ors Vs UT of J&K 2023 LiveLaw (JKL) 26

Santosh Kumar & Ors Vs Kuldeep Singh and another 2023 LiveLaw (JKL) 27

Khalid Nazir Wagay Vs UT of J&K 2023 LiveLaw (JKL) 28

Neeraj Shastri and another Vs State of J&K and another 2023 LiveLaw (JKL) 29

Tawqeer Ahmad Wani Vs UT of J&K 2023 LiveLaw (JKL) 30

M/s Sundaram Surgicals Vs Drug Inspector Doda 2023 LiveLaw (JKL) 31

XXX(Minor) Through Her Father Vs UT of J&K 2023 LiveLaw (JKL) 32

Dr Jahangir Iqbal Tantray Vs Farmeeda Akhter 2023 LiveLaw (JKL) 33

Sunil Kumar Vs Union of India 2023 LiveLaw (JKL) 34

Ms Syeda Nazir Vs State of J&K & Ors 2023 LiveLaw (JKL) 35

Danish Chauhan Vs DGP J&K 2023 LiveLaw (JKL) 36

Shabir Ahmed Khan V/s State of J&K & Anr. 2023 LiveLaw (JKL) 37

Oriental Insurance Co. Ltd. Vs Ghulam Qadir & anr 2023 LiveLaw (JKL) 38

Dr Kiran Bala Vs Dr Ashwini Kumar Singh Jasrotia 2023 LiveLaw (JKL) 39

Pooja Devi & Ors Vs Tarseem Lal & Ors 2023 LiveLaw (JKL) 40

Radha Sharma Vs State of J&K & Ors. 2023 LiveLaw (JKL) 41

Inhabitants of Sheva Shirshu Doda Vs UT of J&K 2023 LiveLaw (JKL) 42

Union Of India Vs Assistant Labour Commissioner & Ors 2023 LiveLaw (JKL) 43

Jammu Development Authority Vs Jag Mohan Wazir & Anr 2023 LiveLaw (JKL) 44

Syed Shahid Hamdani Vs UT of J&K 2023 (JKL) 45

Bashir Ahmad Dar Vs Shameema & Ors 2023 LiveLaw (JKL) 46

Arif Ahmad Khan Vs UT of J&K 2023 LiveLaw (JKL) 47

J&K Service Selection Board Vs Vinkal Sharma 2023 LiveLaw (JKL) 48

Mohammad Shafi Naikoo Vs District Magistrate Anantnag & Ors 2023 LiveLaw (JKL) 49

Rokade Santosh Sandashiv & Anr Vs Union of India & Anr 2023 LiveLaw (JKL) 50

Reema Arora & Ors Vs Law Enforce Inspector (Fertilizer) 2023 LiveLaw (JKL) 51

Rajana Devi Vs State of J&K &Ors 2023 LiveLaw (JKL) 52

Abdul Khaliq Rather Vs State of J&K & Ors 2023 LiveLaw (JKL) 53

New India Assurance Co. Ltd Vs Anita Devi and others 2023 LiveLaw (JKL) 54

Mukhtar Ahmad Andrabi Vs UT of J&K & Ors 2023 LiveLaw (JKL) 55

National Insurance Co. ltd.Vs Mursa Begum and ors 2023 LiveLaw (JKL) 56

Karnail Singh Vs UT of J&K 2023 LiveLaw (JKL) 57

Farooq Ahmad & Ors Vs State of J&K & Ors. 2023 LiveLaw (JKL) 58

Master X th. Shah Wali Vs State of J&K 2023 LiveLaw (JKL) 59

India Tourism Development Corporation Limited & Anr Vs Fayaz Ahmad Sheikh & Ors. 2023 LiveLaw (JKL) 60

Ms. X (MINOR) Vs UT of J&K & Ors 2023 LiveLaw (JKL) 61

Bopinder Singh Dua Vs UT of J&K 2023 LiveLaw (JKL) 62

Manzoor Ahmad Dar Vs State of J&K 2023 LiveLaw (JKL) 63

Mst Haleema & Ors Vs Mst Dilshada & Ors. 2023 LiveLaw (JKL) 64

Jia Lal Vs UT of J&K & Anr 2023 LiveLaw (JKL) 65

IFFCO TOKIO General Insurance Co. Ltd Vs Om Prakash 2023 LiveLaw (JKL) 66

Zahid Hussain Jan Vs State of J&K 2023 LiveLaw (JKL) 67

UT of J&K Vs Munshi Masood 2023 LiveLaw (JKL) 68

Dr. Khair-Un-Nisa and others Shalini Sharma and others Vs UT of J&K & others 2023 LiveLaw (JKL) 69

Nikunj Sharma Vs State of J&K and another 2023 LiveLaw(JKL) 70

Mohammad Maqbool Regu and ors Vs Hilal Ahmad & Ors 2023 LiveLaw (JKL) 71

Farid Ahmad Tak Vs UT of J&K & Ors 2023 LiveLaw (JKL) 72

Fayaz Ahmad Rather Vs UT of J&K 2023 LiveLaw (JKL) 73

Sonika Sharma vs Union of India 2023 LiveLaw (JKL) 74

Sunil Kumar Vs UT of J&K 2023 LiveLaw (JKL) 75

Raj Kumar Vs SSP & Anr 2023 LiveLaw (JKL) 76

Rizwan Bashir Dhobi Vs UT of J&K 2023 LiveLaw (JKL) 77

Mohammad Abdullah Bhat Vs Nazir Ahmad Bhat & Ors 2023 LiveLaw (JKL) 78

Amjid Hussain Khan Vs State of J&K 2023 LiveLaw (JKL) 79

Sheikh Mohammad Amin and another Vs Yasir Farooq and others 2023 LiveLaw (JKL) 80

Emaad Muzaffar Makhdoomi vs Vikar Ahmad Bhat 2023 LiveLaw (JKL) 81

Madan Lal & Ors Vs UT of J&K 2023 LiveLaw (JKL) 82

Robkar Vs Vivek Bhardwaj & Ors 2023 LiveLaw (JKL) 83

Sheikh Khalid Jehangir Vs Nayeem Akhter 2023 LiveLaw (JKL) 84

Afsana Kouser Vs UT of J&K 2023 LiveLaw (JKL) 85

Mohd Ashraf Shah Vs Union of India 2023 LiveLaw (JKL) 86

Gull Mohammad Bhat Vs Raj Kumar Goyal and others 2023 LiveLaw (JKL) 87

Jamal Din & Ors Vs New India Assurance 2023 LiveLaw (JKL) 88

Mohammad Ashraf Wani Vs Muzamil Bashir 2023 LiveLaw (JKL) 89

Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another 2023 LiveLaw (JKL) 90

Peerzada Shah Fahad Vs UT of J&K 2023 LiveLaw (JKL) 91

Janbaz Ahmad Dass Vs UT of J&K 2023 LiveLaw (JKL) 92

Surinder Partap Singh and another Vs Vijay Kumar and Anr 2023 LiveLaw (JKL) 93

Tariq Ahmad Dar Vs NIA 2023 LiveLaw (JKL) 94

Ghulam Rasool Dar Vs J&K State Cooperative Bank 2023 LiveLaw (JKL) 95

Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors 2023 LiveLaw (JKL) 96

M/s Ajay Auto Mobiles Vs TVS Motor Company Ltd. and others 2023 LiveLaw (JKL) 97

Rajinder Singh Manhas Vs Anil Gaind & Anr 2023 LiveLaw (JKL) 98

Renu Bala &Ors Vs State &Ors 2023 LiveLaw (JKL) 99

Zahoor Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 100

Mohammad Maqbool Bhat Vs UT of J&K 2023 LiveLaw (JKL) 101

Nayeem Rasool Vs UT of J&K 2023 LiveLaw (JKL) 102

Mohammad Ashraf Dar vs UT Of J&K 2023 LiveLaw (JKL) 103

Ayaz Ahmad Vs UT of J&K 2023 LiveLaw (JKL) 104

Sheikh Shakeel Ahmed Vs UT of J&K 2023 LiveLaw (JKL) 105

M/S Power Grid Corporation of India Ltd. Versus Assessing Authority Sales Tax Circle D Jammu 2023 LiveLaw (JKL) 106

Land Owners of Village Suthsoo and others Vs State of J&K 2023 LiveLaw (JKL) 107

Molvi Mohammad Amin Pala Vs UT of J&K 2023 LiveLaw (JKL) 108

UT of J&K Vs Pradeep Singh( Now Dead) 2023 LiveLaw (JKL) 109

Farooq Ahmad Mir Vs Nisar Ahmad Wani and others 2023 LiveLaw (JKL) 110

Ashok Kumar Vs CBI 2023 LiveLaw (JKL) 111

Harbachan Singh Vs Sr. Superintendent of Police Srinagar and others 2023 LiveLaw (JKL) 112

Muntazir Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 113

Ghulam Ahmad Mir Vs J&K Bank & Ors 2023 LiveLaw (JKL) 114

Hem Raj Vs Union of India & Ors 2023 LiveLaw (JKL) 115

Shamim Ahmed Vs UT of J&K & Ors 2023 LiveLaw (JKL) 116

Seema Phull and another Naina Sodi and others Vs United India Insurance Company and another 2023 LiveLaw (JKL) 117

Union Of India Vs Madan Lal & Ors 2023 LiveLaw (JKL) 118

Bachan Lal. Vs J&K Special Tribunal 2023 LiveLaw (JKL) 119

Nissar Ahmad Shah Vs Union of India & Ors 2023 LiveLaw (JKL) 120

Abdul Aziz Bhat & Ors Vs Hilal Ahmad Bhat 2023 LiveLaw (JKL) 121

National India Insurance Vs Jagjeet Singh 2023 LiveLaw (JKL) 122

Nazir Ahmad Ganai Vs State of J&K 2023 LiveLaw (JKL) 123

Showkat Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 124

Wajid Ali Vs UT of J&K 2023 LiveLaw (JKL) 125

UT of J&K and others Vs Shabir Ahmad Dar and others 2023 LiveLaw (JKL) 126

Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors 2023 LiveLaw (JKL) 127

Suraj Chand Vs Bajaj Allianz Insurance Co. Ltd 2023 LiveLaw (JKL) 128

Swarn Salaria Vs Baldev Raj Sharma & Ors. 2023 LiveLaw (JKL) 129

Atta Mohd Khan Vs UT of J&K 2023 LiveLaw (JKL) 130

Farooq Ahmad Parray Vs UT of J&K 2023 LiveLaw (JKL) 131

Muneer Ahmad Paswal Vs Union of India 2023 LiveLaw (JKL) 132

Mehvish Choudhary Vs J&K Bank & Anr 2023 LiveLaw (JKL) 133

Suhas Laxman Phadke & anr Suprakash Kundu Deepak Kapoor Vs State of J&K 2023 LiveLaw (JKL) 134

Mohammad Akram Dar & Ors Vs State of J&K 2023 LiveLaw (JKL) 135

Tanveer Ahmed @ Jimmy Vs UT of J&K 2023 LiveLaw (JKL) 136

Rasheed Ahmad Peerzada Vs J&K Special Tribunal 2023 LiveLaw (JKL) 137

Ashok Kumar Sharma Vs Union of India 2023 LiveLaw (JKL) 138

United India Insurance Co. Ltd Vs Ashok Kumari and ors 2023 LiveLaw (JKL) 139

M/S Highlander Bar and Restaurant Vs Union of India 2023 LiveLaw (JKL) 140

M/s Om Infra Ltd. New Delhi Vs Chenab Valley Power Projects P Ltd and ors 2023 LiveLaw (JKL) 141

Central Bureau of Investigation, Anti-Corruption Bureau Vs Hazra Khan 2023 LiveLaw (JKL) 142

Bharosi Lal Vs Union of India 2023 LiveLaw (JKL) 143

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

Judgments/Orders:

JKL High Court Slams Authorities For Denying Passport To Mehbooba Mufti's Mother, Says Passport Authority Can't Act As Mouthpiece of CID

Case Title: Gulshan Nazir Vs Union of India

Citation: 2023 LiveLaw(JKL) 1

Directing the Passport Officer to consider former J&K Chief Minister Mehbooba Mufti's mother's application for re-issuance of passport afresh, the Jammu & Kashmir and Ladakh High Court said that the authority has not to act as "mouthpiece of the CID". It ruled that the police verification report cannot override the statutory provisions of Section 6 of the Passport Act, 1967.

Setting aside the orders by which Mufti's mother Gulshan Nazir was refused passport, Justice M A Chowdhary said the passport officer shall consider the entire matter afresh and pass orders thereon within a period of six weeks.

When A Private Entity Is Amenable To Writ Jurisdiction, Judicial Review Restricted To Public Functions: J&K&L High Court

Case Title: M/S Aisha Construction Vs JKCA

Citation: 2023 LiveLaw (JKL ) 2

The Jammu and Kashmir and Ladakh High Court ruled that in cases where a private body is amenable to writ jurisdiction, the powers of judicial review are confined to actions which have an element of public duty involved.

12 Years After Arrest, J&K&L High Court Grants Bail To Constable Accused Of Murdering Wife; Says Police Prolonging Trial

Case Title: Manzoor Ahmad Mir Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 3

Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court granted bail to a man accused of murdering his wife.

Justice Sanjay Dhar said the accused has "carved out a case for grant of bail" on account of his long incarceration for more than 12 years and on account of the fact that by the conduct of the prosecution and the police department, there is hardly any chance of conclusion of trial in near future.

Units Located In J&K Entitled For Central Excise Duty Exemption Prior To 1st July 2017 Liable To Pay GST: J&K & Ladakh High Court

Case Title: Godrej Consumer Products Limited Versus Union of India

Citation: 2023 LiveLaw (JKL) 4

The Jammu and Kashmir and Ladakh High Court held that units located in Jammu and Kashmir are entitled to central excise duty exemption prior to July 1, 2017, and are therefore liable to pay GST.

The division bench of Justice Tashi Rabsdan and Justice Mohan Lal observed that in terms of the Central Excise regime as it existed prior to July 1, 2017, the units located in Jammu & Kashmir and other states were eligible to avail exemption from payment of Central Excise duty in terms of area-based exemption notifications.

Co-Sharer Cannot Be Restrained From Raising Construction Over Portion Of Joint Holding In His Exclusive Possession: JKL High Court

Case Title: Mst Zaiba Vs Ghulam Ahmad Zargar & Ors.

Citation: 2023 LiveLaw(JKL) 5

The Jammu and Kashmir and Ladakh High Court ruled that a co-sharer, who is in exclusive possession of a joint holding, cannot be restrained from raising construction on the portion of which he is in exclusive possession.

Detention Order Passed For Pleasure Of Passing It, Grounds Not A Matter Of Wordplay: High Court Censures Kashmir Divisional Commissioner

Case Title: Zahid Nabi Khan Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 6

The Jammu & Kashmir and Ladakh High Court quashed a detention order under Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act, observing that it seems to have been passed for the pleasure of passing an order.

Justice Rahul Bharti said that the petitioner was on bail in the case under NDPS Act, thereby he was in regular attendance before the investigating agency and in a sense under the constructive custody of law.

S.311 CrPC Meant To Ensure There Is No Failure Of Justice Due To Mistake Of Parties In Bringing Valuable Evidence On Record: JKL High Court

Case Title: Khazir Mohammad Naikoo Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 7

Observing that the legislative intent behind Section 540 of J&K CrPC (pari materia with Section 311 of CrPC) is to ensure there is no failure of justice due to the mistake of either party in bringing the valuable evidence on record, the J&K&L High court set aside an order of the trial court in terms of which it had disallowed the petitioner to examine certain witnesses.

Justice Sanjay Dhar observed:

"A Court may, in its discretion, summon and examine any person as a witness who has not been summoned as a witness or recall/re-examine any person already examined and in case evidence of such person appears to the Court essential to the just decision of the case, it is the bounden duty of the Court to exercise its power under this provision".

S.143A NI Act | Magistrate Must Record Reasons For Exercising Discretionary Power To Order Interim Compensation: JKL High Court

Case Title: Nazir Ahmad Chopan Vs Abdul Rehman Chopan

Citation: 2023 LiveLaw (JKL) 8

The Jammu and Kashmir and Ladakh High Court reiterated that power to grant interim compensation under Sec 143-A of Negotiable Instrument Act is discretionary in nature and such interim relief must be based on reason and logic.

"There can be so many other reasons for a Magistrate to grant interim compensation in favour of the complainant but these reasons have to be recorded in the order so that the validity of the order is tested by the superior court if and when such an order is challenged", the court recorded.

S.102(3) CrPC Requiring Police Officer To Forthwith Report Seizure Of Property To Magistrate Only Directory In Nature: JKL High Court

Case Title: Ruqaya Akhter Vs UT Through Crime Branch.

Citation: 2023 LiveLaw (JKL) 9

The Jammu and Kashmir and Ladakh High Court held that since the provisions of CrPC do not provide for consequences of non-adherence to Section 102(3) it can be inferred that the said provision is not mandatory in nature even though the word “shall” has been used in the provision.

The provision stipulates that a police officer, after seizing any property, has to forthwith report the seizure to the Magistrate having jurisdiction and in case it is not convenient to transport the seized property to the court, he may entrust it to any person on his executing a bond to produce the property as and when required.

Muslim Law | No Need For Husband To Physically Depart From Gifted Property To Validate His Gift For Wife: JKL High Court

Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.

Citation: 2023 LiveLaw (JKL) 10

The Jammu and Kashmir and Ladakh High Court observed that where a husband makes a gift to the wife, either of the matrimonial home occupied by both of them or any other property belonging to him, there is no need for actual physical departure by the donor to execute the Gift.

"The reason is that the relationship of husband and wife is different from any other relationship. Joint residence is an integral aspect of this relationship and the fact that the husband manages and looks after the property of the wife is backed by an implied presumption that he does it on behalf of his wife", Justice Sanjay Dhar recorded.

Sufficient Inbuilt Remedies Available Under J&K Electricity Act To Challenge Provisional Assessment, Writ Not Maintainable: High Court

Case Title: JK Montessori School Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 11

The Jammu and Kashmir and Ladakh High Court observed that the J&K Electricity Act 2010 provides sufficient inbuilt appellate remedies for anyone aggrieved of provisional electricity assessment. Therefore, invoking the writ jurisdiction would not be an appropriate mechanism to challenge the same.

Observing that when the statutory and equally efficacious remedy is available the writ petition should not be entertained and the party concerned should be relegated to such alternative remedy, Justice Nargal recorded,

"I don't find it a case, which is covered by the exceptions to the general rules that in the face of alternate and efficacious remedy, the Constitutional Court would entertain the present writ petition under Article 226 of the Constitution of India".

JKL High Court Imposes ₹1 Lakh Cost On Party Over Suppression Of Litigation History

Case Title: Fayaz Ahmad Rather Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 12

Deploring the conduct of the petitioner for indulging in suppression of material facts in order to secure a favourable order, the Jammu and Kashmir and Ladakh High Court on Wednesday imposed a cost of Rs 1,00,000/- (one lac) on the petitioner and directed the same to be deposited in the Lawyers Welfare Fund within a period of one month.

The costs came to be imposed by a bench comprising Justices Moksha Khajuria Kazmi while hearing a plea wherein the petitioner had assailed an order dated 12.11.2022 passed by the District Magistrate, Kulgam pursuant to which Tehsildar, Kulgam, had been directed to proceed on spot and evict the petitioner from the land.

Even Typographical Errors In Dossier Copied By Magistrate, No Application Of Mind: JKL High Court Quashes Preventive Detention Of Alleged LeT Aide

Case Title: Javaid Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 13

The Jammu and Kashmir and Ladakh High Court observed that every case in which preventive detention of any citizen of India is sought by law enforcement agencies, the same demands a very fact-sensitive and law-centric application and approach of mind.

A bench of Justice Rahul Bharti quashed a preventive detention order against a detenue, who was "painted and portrayed" as an aide of Lashar-e-Taiba (LeT) outfit by the detaining authority, merely one year after a previous detention order against the said detenu was quashed.

CBI Was Sufficiently Empowered To Investigate Cases In Erstwhile State of J&K In Terms Of General Consent: J&K&L High Court

Case Title: Kumar Avinav Vs State of J&K.

Citation: 2023 LiveLaw 14

The High Court of J&K and Ladakh ruled that Central Bureau of Investigation (CBI) enjoyed the requisite jurisdiction to investigate offences committed within the territorial jurisdiction of erstwhile State of J&K in terms of the general consent given on May 7, 1958 and December 8, 1963 by the government

Permitting Executive To Review Or Sit Over Court's Decisions Would Tantamount To Interference With Judicial Functions: J&K&L High Court

Case Title: Rukhsana Jabeen Vs State of J&K

Citation: 2023 LiveLaw (JKL) 15

The Jammu and Kashmir and Ladakh High Court observed that the executive is under obligation to obey judicial orders and permitting the executive to review, revise or sit over the decisions of the Court by issuing executive orders or instructions would tantamount to interference with the exercise of judicial functions.

Article 226 Petition Can Be Moved Even When Fundamental Right Is Threatened, Provided Apprehension Is Well Founded: JKL High Court

Case Title: Farooq Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 16

The Jammu and Kashmir and Ladakh High Court reiterated that a petition under Article 226 can be entertained even when the fundamental right of a citizen is threatened and one need not await the actual prejudice or adverse effects for filing the same, provided his apprehension is well founded.

Can't Let Them Suffer "Rough Side Of Life": JKL High Court Grants Bail To Father Of Two Minors Booked For Murder Of Their Mother

Case Title: Sham Lal vs UT of J&K

Citation: 2023 LiveLaw (JKL) 17

The Jammu and Kashmir and Ladakh High Court granted bail to a man, accused of killing his wife, to take care of their two minor daughters.

Appreciating the sensitivity of the situation Justice Rahul Bharti said that it could ignore the hard fact that the two minor daughters while on the one hand had come to suffer loss of their mother for all times to come and on the other hand are suffering the absence of their father who by virtue of his detainment, is not to be assumed to be able to attend to their welfare and well being in terms of needs of their daily life.

[JKPSC Recruitment] Qualification In 'Relevant Subject' Has Wider Scope Of Eligibility Than Qualification In 'Subject Concerned': High Court

Case Title: Shahid Hameed Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 18

The Jammu and Kashmir and Ladakh High Court held that in matters of recruitment, the phrase 'qualification in relevant subject' has wider implications than the phrase 'qualification in subject concerned'.

Finding so, it permitted a post graduate degree holder in 'Applied Geology' to apply for the vacant position of 'Geology' Assistant Professor, adding that the recruitment notification issued by the J&K Public Service Commission in this case only prescribed a candidate to possess degree in 'relevant subject' and not the particular 'subject concerned'.

Pending Inquest Proceedings U/S 174 CrPC No Bar For Magistrate To Order Registration Of FIR: JKL High Court

Case Title: Rahul Kumar & Ors Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 19

The Jammu and Kashmir and Ladakh High Court held that a case can be registered for investigation by lodging of FIR, on receipt of information about commission of cognizable offence without waiting for a conclusion of inquest proceedings initiated under section 174 CrPC.

A bench of Justice M A Chowdhary observed,

"Merely because the inquest proceedings were pending before the police at the time when the impugned order was passed by the learned Magistrate (to register FIR) would not make the said order unsustainable in law".

24 Years After Forced Eviction By MoD's Badami Bagh Cantonment Board In Kashmir, High Court Awards 10 Lakh Compensation To Allottee

Case Title: P N Sharma Vs Union Of India & Ors

Citation: 2023 LiveLaw (JKL) 20

The Jammu and Kashmir and Ladakh High Court awarded Rs 10 Lakh compensation to a person, who was evicted from his shop-cum-residential premise in 1998 by Ministry Of Defence's Badamibagh Cantonment Board without following the due course of law as prescribed under the Public Premises (Eviction of Un-authorized Occupants) Act, 1971

The compensation came to be granted by Justice Sanjay Dhar while disposing of a plea in terms of which the petitioner was seeking a declaration that his eviction from the shop-cum-residential premises at Saddar Bazar, Badami Bagh Cantonment, Srinagar is illegal, arbitrary and violative of constitutional guarantees.

No Fetters Can Be Placed On Press Freedom By Registering FIRs Against Journalists Who Report On Information Given By Identifiable Source: JKL High Court

Case Title: Asif Iqbal Naik Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 21

Quashing an FIR against a journalist, the Jammu and Kashmir and Ladakh High Court said that no fetters can be placed on the freedom of press by registering the FIR against journalists, who perform their professional duty by publishing news items on the basis of information obtained by them from an identifiable source.

"However, they are also expected to report the coverage with responsibility without any jingoism and divisive publication or telecast," Justice MA Chowdhary said.

[PIT-NDPS Act] Threat To Public Health Ground For Detention If Authority Satisfied That Detenu Indulged In Illicit Drug Trafficking: JKL High Court

Case Title: Tajinder Singh alias Happy Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 22

The Jammu and Kashmir and Ladakh High Court ruled that merely because the detaining Authority among other grounds has also observed that the activities of the detenu pose a serious threat to the health and welfare of the people would not render the impugned order of detention under Section 3 of the PIT-NDPS Act illegal.

Cross FIRs Permissible In Case Of Two Different Versions Of Parties With Regard To Same Occurrence: JKL High Court

Case Title: Abdul Rashid Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 23

The Jammu and Kashmir and Ladakh High Court reiterated that there cannot be two FIRs with regard to the same occurrence but in cases of two different versions on part of rival parties with regard to the same occurrence, registration of cross FIRs is permissible.

"It cannot be said that in the instant case, the registration of FIR on the application of the petitioner would amount to registration of second FIR regarding same offence. Rather this Court is of the considered view that the same would be a cross FIR and the registration of the same, is not impermissible under law", the bench underscored.

Accused Can't Choose Place Of Prosecution By Taking Refuge Of Unfounded Security Apprehensions: JKL High Court

Case Title: Prof S K Bhalla Vs Haq Nawaz Nehru

Citation: 2023 LiveLaw (JKL) 24

The Jammu and Kashmir and Ladakh High Court dismissed a petition filed by social activist Prof. SK Bhalla seeking transfer of a defamation complaint, filed against him by a journalist in Doda, to Jammu.

The bench of Justice M A Chowdhary said that an accused cannot be allowed to have a place of his choice to be prosecuted by taking refuge of unfounded personal security apprehensions.

'Pseudo Police Report' Filed U/S 173 CrPC Cannot Defeat Right Of Accused To Default Bail: JKL High Court

Case Title: Gopal Krishan & Ors Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 25

The Jammu and Kashmir and Ladakh High Court held that a 'pseudo police report' under section 173 CrPC, even if filed within time frame of section 167 CrPC, cannot be given legal sanctity to betray the statutory/default bail right of an accused in a case.

A bench of Justice Rahul Bharti observed,

"This right, upon getting accrued, is given straight away on asking of the entitled accused notwithstanding the purported gravity of the accusation of offence/s against the accused under pre-trial custody".

Multiple Criminal Proceedings By Complainant Over Same Allegations Violate Accused's Rights Under Articles 21 & 22 Constitution: JKL High Court

Case Title: Parwez Samuel Koul & Ors Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 26

The Jammu and Kashmir & Ladakh High Court recently observed that filing of multiple criminal proceedings against the same accused by an informant for the same alleged offence is prohibited in law.

"Getting an accused entangled in multiple criminal proceedings in same alleged offence would be an abuse of process of law, which cannot stand the scrutiny of the Article 21 and 22 of the Constitution," a bench comprising Justices Javed Iqbal Wani observed relying on Apex Court's decision in Tarak Dash Mukharjee vs State of Uttar Pradesh".

[S.7 Armed Forces Special Powers Act] Sanction To Prosecute Required If Action, No Matter How Illegal, Is In Discharge Of Duty: JKL High Court

Case Title: Santosh Kumar & Ors Vs Kuldeep Singh and another.

Citation: 2023 LiveLaw (JKL) 27

The Jammu and Kashmir and Ladakh High Court observed that to prosecute an Armed Forces personnel for an alleged illegal act committed in connected with the discharge of official duty, sanction to prosecute under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act is required, no matter how illegal the act may be.

Justice Sanjay Dhar observed,

"if an act is connected with the discharge of official duty of an accused, the said act is certainly under the colour of his duty, no matter how illegal the act may be, but if the offence is committed entirely outside the scope of the duty of police officer/official, there is no requirement of previous sanction. In short, in order to attract the provisions of Section 7 of AFSP Act, it has to be shown that there is a reasonable connection between the act and performance of duty in execution of powers under the Act."

Subsequent Detention Order Not Mentioning Detenu's Previous Detention On Same Grounds And Materials Not Sustainable: JKL High Court

Case Title: Khalid Nazir Wagay Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 28

Quashing a detention order the Jammu and Kashmir & Ladakh High Court recently held that using the same grounds and material for passing a subsequent detention order without actually mentioning that the detenue had already been detained on the basis of this very material, not only amounts to an illegality but also shows lack of application of mind on part of the detaining authority.

S.66 Food Safety & Standards Act | Criminal Prosecution Cannot Proceed Against Partners Without Arraigning Firm As Accused: JKL High Court

Case Title: Neeraj Shastri and another Vs State of J&K and another

Citation: 2023 LiveLaw (JKL) 29

The Jammu and Kashmir and Ladakh High Court recently ruled that the existence of Section 66 in the Food Safety and Standard Act 2006 is a clear pointer to the fact that the criminal prosecution cannot proceed against partners without arraigning the firm as an accused.

Observing that there is no concept of vicarious liability in criminal law the court went on to clarify that Section 66 of the said Act prescribes for vicarious liability and therefore when an offence has been committed by a company, every person, who at the time the offence was committed, was incharge, shall be deemed to be guilty of the offence.

Detaining Authority Has Exclusive Responsibility To Formulate Grounds Of Detention, Investigating Agency Can Only Give Inputs: JKL High Court

Case Title: Tawqeer Ahmad Wani Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 30

Quashing a Preventive detention order, the Jammu and Kashmir and Ladakh High Court observed that the Investigating agency has no role in the formulation of the grounds of detention of a detenue as the same is a prerogative of the detaining authority.

A bench comprising Justice Vinod Chatterji Koul observed,

"Detaining authority may get inputs from different agencies, including Superintendent of Police concerned, but responsibility to formulate grounds of detention exclusively rests with detaining authority".

No Prosecution Under Drugs & Cosmetics Act Against A "Purported Manufacturer"; Must Ascertain Identity Of Actual Manufacturer: JKL High Court

Case Title: M/s Sundaram Surgicals Vs Drug Inspector Doda.

Citation: 2023 LiveLaw (JKL) 31

The Jammu and Kashmir and Ladakh High Court ruled that the prosecution for commission of offence under section 18 (a) (i), read with section 27 (c) of the Drugs and Cosmetics Act 1940 Act cannot be launched against a purported manufacturer of whom the subject drug is truly not a product.

"It is only the dealer, retailer and actual manufacturer, who can be prosecuted for sale, stock or exhibition of spurious drug," Justice Sanjay Dhar observed while hearing a plea challenging the complaint filed against the Petitioner by Drugs Inspector, Doda.

J&K&L High Court Allows Minor Rape Victim To Undergo Medical Termination Of 19-Week Pregnancy After Her Father Gives 'High Risk Consent'

Case Title: XXX(Minor) Through Her Father Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 32

The Jammu and Kashmir and Ladakh High Court allowed a minor rape victim to undergo medical termination of 19-week pregnancy after her father gave "extra high risk consent" as was demanded by the medical board.

The victim's father had approached the court seeking termination of pregnancy of the minor. In the rape case, an FIR was registered at a police station in north Kashmir on February 14.

O VII R 10 CPC | Can't Dismiss Suit At Threshold If Question Of Jurisdiction Is Question Of Fact Or Mixed Question Of Fact And Law: JKL High Court

Case Title: Dr Jahangir Iqbal Tantray Vs Farmeeda Akhter

Citation: 2023 LiveLaw (JKL) 33

The Jammu and Kashmir and Ladakh High Court ruled that the obligation to dismiss a suit at the threshold or return a plaint for want of jurisdiction arises only when it is a pure issue of law. The issue of jurisdiction, depending on question of fact or mixed question of law and fact, must be decided on merits, it clarified.

Abraded Lesions On Hand After Tattoo Removal Does Not Make Candidate Unfit For CAPF Unless It Has Potential To Interfere With Working: JKL High Court

Case Title: Sunil Kumar Vs Union of India

Citation: 2023 LiveLaw (JKL) 34

The Jammu and Kashmir and Ladakh High Court observed that mere abraded lesions on the hand and forearm, which do not have any potentiality to interfere with the working of a Constable, cannot be made ground to declare a candidate unfit for service in CAPF.

[Anganwadi Workers] Acquisition Of Higher Qualification At A Later Date Not Determinative For Fixing Seniority: JKL High Court

Case Title: Ms Syeda Nazir Vs State of J&K & Ors

Citation: 2023 LiveLaw (JKL) 35

The Jammu and Kashmir and Ladakh High Court directed the Govt of J&K to fix the seniority of Anganwadi workers from their initial engagement reiterating that the acquisition of higher qualification at a later date, even when such a higher qualification is the requisite qualification for the higher post, will not be determinative for fixing the seniority.

"However for the purpose of computing the experience with a particular qualification, the relevant date would be when the relevant qualification has been acquired. Previous experience without particular qualification will have to be ignored," it clarified.

Proceedings Under Section 12 Domestic Violence Act Not Bar To Initiating Criminal Action, Lodging FIR U/S 498A IPC: JKL High Court

Case Title: Danish Chauhan Vs DGP J&K

Citation: 2023 LiveLaw (JKL) 36

The Jammu and Kashmir and Ladakh High Court ruled that merely because proceedings have been initiated by a wife against her husband under the Protection of Women from Domestic Violence Act, 2005 (DV Act), no bar can be construed against lodging a first information report (FIR) for cruelty under Section 498A of the Indian Penal Code.

Attacks On Politicians Who Do Not Subscribe To Separatists Ideology Still Prevalent In Kashmir Valley: High Court

Case Title: Shabir Ahmed Khan V/s State of J&K & Anr.

Citation: 2023 LiveLaw (JKL) 37

Observing that the incidents of attacks on main-stream politicians and the people who do not subscribe to the separatists ideology are still taking place in Kashmir Valley, the Jammu and Kashmir and Ladakh High Court allowed an application filed by former health minister Shabir Ahmed Khan seeking transfer of criminal proceedings against him from a court in Srinagar to a Jammu court.

JKL High Court Raps Medical Officer For Issuing Disability Certificates To Motor Accident Victims For 'Extraneous Considerations', Orders Inquiry

Case Title: Oriental Insurance Co. Ltd. Vs Ghulam Qadir & anr

Citation: 2023 LiveLaw (JKL) 38

The Jammu and Kashmir and Ladakh High Court censured a medical Officer for conducting grave professional misconduct by issuing number of Permanent Disability Certificates, though being not competent to issue such certificates, and help beneficiaries to get hefty amount of compensation from the Motor Accidents Claims Tribunals from time to time without there being any such disability, thereby causing wrongful loss to the insurance companies.

Before Resorting To OV R15 CPC, Must Show Defendant's Absent From Residence & No Likelihood Of Being Found: Jammu & Kashmir High Court

Case Title: Dr Kiran Bala Vs Dr Ashwini Kumar Singh Jasrotia.

Citation: 2023 LiveLaw (JKL) 39

The Jammu and Kashmir and Ladakh High Court ruled that before resorting to provisions contained in Order V Rule 15 (Issuance of Summons) of the CPC, it has to be shown that the defendant is absent from his residence at the time when the service of the summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time.

A bench comprising Justice Sanjay Dhar observed,

"It has also to be shown that the defendant has no agent empowered to accept the service of the summons on his behalf. Only when the conducts above are fulfilled, O V, R15 can be taken recourse to".

Cannot Rescue Litigant Filing "Cryptic" Delay Condonation Application Without Giving Proper Account Of Dates: Jammu & Kashmir High Court

Case Title: Pooja Devi & Ors Vs Tarseem Lal & Ors.

Citation: 2023 LiveLaw (JKL) 40

The Jammu and Kashmir and Ladakh High Court dismissed a 'cryptic' delay condonation application for not giving proper account of dates.

A bench comprising Justice MA Chowdhary observed,

"Courts cannot come to aid and rescue of litigant where application for condonation does not spell out sufficient cause and the approach of petitioners, in making such application in casual and cryptic manner".

13-Yr-Old Electrocuted, Dies: Jammu & Kashmir High Court Invokes Absolute Liability, Grants ₹10 Lakh Compensation To Mother

Case Title: Radha Sharma Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 41

Invoking the principle of absolute liability, the Jammu and Kashmir and Ladakh High Court on Wednesday granted Rs. 10 Lakh compensation to the mother of a 13 year old who died due to electrocution.

A bench comprising Justice Wasim Sadiq Nargal observed that the rule of absolute liability does not obligate the claimant to prove negligence. Rather, on account of hazardous and dangerous nature of enterprise, the liability is fastened on the defaulter even when due and necessary care has been taken.

Stone Crusher Industry Plays Pivotal Role In Country's Development, Govt Policy Has Liberalized Mining Regime: J&K And Ladakh High Court

Case Title: Inhabitants of Sheva Shirshu Doda Vs UT of J&K & Ors

Citation: 2023 LiveLaw (JKL) 42

Terming the Standing Order issued by J&K Govt in 2021 for regulation of the stone crushing units in the UT as a valid piece of legislation, the Jammu and Kashmir High Court said that it has in a way liberalized the establishment of stone crusher units.

The bench of Justice Wasim Sadiq Nargal observed:

"The growth of the country and infrastructural development, the stone crusher industry plays a pivotal role and without operating the same, the development of the country will come to a standstill".

Creation Of Special Authority No Reason To Condone Delay, Party Must Offer Explanation: Jammu & Kashmir High Court

Case Title: Union Of India Vs Assistant Labour Commissioner & Ors.

Citation: 2023 LiveLaw (JKL) 43

The Jammu and Kashmir and Ladakh High Court set aside an order of the Assistant Labour Commissioner condoning at least 15 years delay by certain persons in seeking compensation under Employees Compensation Act on behalf of their relatives, on the solitary premise that it is a creation of special legislation.

Justice Rajesh Sekhri observed,

"Creation of an Authority under special legislation cannot be a reason, much less sufficient, to condone the delay and as already explained, it is the applicant who is obliged to explain the delay and not the Authority or the Court, as the case may be, to make out a case for condonation of delay."

Cause Of Action Cannot Be Generated By Repeated Representations, Right To Claim Must Be Established: Jammu & Kashmir High Court

Case Title: Jammu Development Authority Vs Jag Mohan Wazir & Anr.

Citation: 2023 LiveLaw (JKL) 44

The Jammu and Kashmir and Ladakh High Court has ruled that 'cause of action' cannot be generated by making repeated representations and serving legal notices to the concerned authorities as every fact is required to be proved in order to support the right being claimed before the court.

Jammu & Kashmir High Court Quashes Rape FIR, Says Proposal For Live-In To Ascertain How Relationship Will Work Out Not False Promise To Marry

Case Title: Syed Shahid Hamdani Vs UT of J&K.

Citation: 2023 (JKL) 45

The Jammu and Kashmir and Ladakh High Court quashed a rape FIR, observing that a proposal made by the accused to prosecutrix for live-In relationship, so as to ascertain how their relationship will work, does not tantamount to false promise to marry.

The bench comprising Justice Sanjay Dhar observed,

"He proposed to have live-in-relationship with her, meaning thereby that at the initial stage the petitioner had not indicated his intention to marry the prosecutrix but he only wanted to ascertain as to how their relationship will work out, whereafter he was to make up his mind as to whether or not he would enter into wedlock with the prosecutrix. This goes on to show that there was no promise of marriage from the petitioner at the time of initiation of their relationship".

Party Seeking Condonation Of Delay In Filing Appeal Against Ex-Parte Decree Not Required To Explain Its Absence During Trial: Jammu & Kashmir High Court

Case Title: Bashir Ahmad Dar Vs Shameema & Ors.

Citation: 2023 LiveLaw (JKL) 46

The Jammu and Kashmir and Ladakh High Court has held that the seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is explanation for period of delay which runs as per the Limitation Act.

Pointing out the perversity in the judgment of the First Appellate Court the bench further added that law provides that delay is to be explained for the period beyond the period of limitation prescribed and the limitation in this case would run from the date of passing of the decree and not from any date prior to passing of the same.

Article 22(5) | Representation Made On Behalf Of Detenu Should Be Considered & Disposed With A Sense Of Urgency: Jammu & Kashmir High Court

Case Title: Arif Ahmad Khan Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 47

Quashing a Preventive detention order under J&K Public Safety Act, the Jammu and Kashmir and Ladakh High Court recently observed that the words "As soon as may be‟, in Article 22 (5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

Jammu & Kashmir High Court Sets Aside Single Bench Order For Probe Against J&K SSB, Matter To Be Decided Afresh

Case Title: J&K Service Selection Board Vs Vinkal Sharma.

Citation: 2023 LiveLaw (JKL) 48

Setting aside the order of Single bench in terms of which it had ordered a probe into conduct of J&K Service Selection Board after the recruitment body was alleged to have appointed a 'Blacklisted' agency for conducting exam, the Division bench of J&K&L High Court remitted the matter back to the Single Judge with a request to decide the matter afresh.

A bench comprising Justices Tashi Rabstan and MA Chowdhary observed,

"We are of the view that the Writ Court had no jurisdiction to finally dispose of the petition without first issuing notice and affording an opportunity to the opposite side for filing reply on merits of the case"

Jammu & Kashmir And Ladakh High Court Accepts Unconditional Apology From Sr AAG, DM Anantnag

Case Title: Mohammad Shafi Naikoo Vs District Magistrate Anantnag & Ors.

Citation: 2023 LiveLaw (JKL) 49

Observing that the apology tendered by Senior Additional Advocate General Abdul Rashid Malik and District Magistrate Anantnag is accompanied with a sense of genuine remorse and repentance and is not a calculated strategy to avoid punishment, the Jammu and Kashmir and Ladakh High Court accepted their unconditional apology.

Accepting the apology, a bench of Justice Wasim Sadiq Nargal observed,

"Apology cannot be accepted, in case it is hollow; there is no remorse, no regret, no repentance, or if it is only a device to escape the rigor of the law. Such an apology can merely be termed as a “paper apology”.

When Issuing Authority Verifies Experience Certificate, Counter-Signing Authority's Denial Won't Lead To Termination Sans Enquiry: Jammu & Kashmir HC

Case Title: Rokade Santosh Sandashiv & Anr Vs Union of India & Anr.

Citation: 2023 LiveLaw (JKL) 50

The Jammu and Kashmir and Ladakh High Court ruled that mere denial of counter signature on a certificate in absence of proper enquiry or finding does not warrant major punishment of termination of service, which becomes punitive in nature particularly when the order of termination is not simpliciter but the stigma is attached to the same.

The bar of proving forgery is high and must be supported by sufficient evidence and in absence of any detailed enquiry conducted in this regard, it cannot be assumed that the documents has been forged by the petitioner No.1", the bench explained.

When Company Is An Offender, No Vicarious Liability Can Be Attached To Its Officers Unless Statute Specifically Provides So: Jammu & Kashmir High Court

Case Title: Reema Arora & Ors Vs Law Enforce Inspector (Fertilizer)

Citation: 2023 LiveLaw (JKL) 51

The Jammu and Kashmir and Ladakh High Court recently quashed a criminal complaint filed under Essential Commodities Act, 1955 against the directors of a company on the ground that the complaint nowhere spells out as to how and in what manner the petitioners/accused were incharge of or were responsible to the accused company.

"The legal intendment is clear that when the company is an offender, vicarious liability of its directors can be imputed in terms of the provisions of a statue, making it a deeming fiction....There is no provision in the Penal Code to attach vicarious liability on Managing Director or Directors or employees of a Company.", the bench said.

Jammu & Kashmir High Court Comes To Aid Of Below Poverty Line Woman "Duped" Of Employment By Govt Officials To Oblige Sarpanch

Case Title: Rajana Devi Vs State of J&K &Ors.

Citation: 2023 LiveLaw (JKL) 52

The Jammu and Kashmir and Ladakh High Court observed that the perversity of an action or decision by a public authority/official, acting in the domain of public administration, irrespective of the tier of the administration, has no hiding from the pendular gaze of the Rule of Law which may for a given case get late but not defaults in catching up with the wrong deed and wrongdoer masquerading in the domain of the public administration.

S.7 Migrant Immovable Property Act Requiring Surrender Of Property To Prefer Appeal Against Eviction In Tune With Peculiar Conditions Of J&K: High Court

Case Title: Abdul Khaliq Rather Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 53

The Jammu and Kashmir and Ladakh High Court ruled that the condition to surrender the property for preferring an appeal under Section 7 of the Migrant Immovable Property Act 1997 against eviction order, was necessitated by the peculiar situation prevailing in the Union Territory of Jammu and Kashmir.

The bench comprising Justices Rajnesh Oswal & Mohan Lal observed,

"This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley".

Compulsory Risks In Insurance Automatically Transferred To Transferee Of Vehicle Even When Certificate Of Insurance Not Transferred: Jammu & Kashmir High Court

Case Title: New India Assurance Co. Ltd Vs Anita Devi and others

Citation: 2023 LiveLaw (JKL) 54

The Jammu and Kashmir and Ladakh High Court ruled that whoever may be the actual owner of the motor vehicle at the time of the accident, compulsory risks covered under the policy of insurance get automatically transferred to the transferee of a vehicle even though certificate of insurance has not been transferred in his favour.

No Absolute Bar On Citizens To Invoke Writ Jurisdiction In Contractual Matters With State: Jammu & Kashmir High Court

Case Title: Mukhtar Ahmad Andrabi Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 55

The Jammu and Kashmir and Ladakh High Court ruled that in matters of contractual dispute with the State and its instrumentalities there is no absolute bar to exercise the writ jurisdiction and the High Court should take a holistic view and make a determination as to whether it would be proper to exercise its writ jurisdiction.

Justice Wasim Sadiq Nargal observed,

"There has been paradigm shift in the approach of the Courts in exercise of its Writ Jurisdiction in the matters of contractual disputes with State and its authorities. The law regarding the exercise of judicial review in contractual matters with State or its instrumentalities has definitely evolved over the years and the ordinary citizens can, in appropriate cases, approach the High Courts for exercise of Writ Jurisdiction."

Insurance Company Not Liable To Unauthorised Passengers Traveling In Offending Vehicle, Pay & Recover Principle Not Applicable: J&K High Court

Case Title: National Insurance Co. ltd.Vs Mursa Begum and ors.

Citation: 2023 LiveLaw (JKL) 56

The Jammu and Kashmir and Ladakh High Court has observed that once it is shown that deceased/injured persons were traveling as unauthorised passengers in an offending vehicle and their risk is not covered under the terms insurance policy, the insurer cannot be saddled with the liability to compensate them and even the principle of 'Pay and Recover' will not be attracted.

Facilitating Question Paper Leak In Competitive Exam More Heinous Than Murder: Jammu & Kashmir HC Refuses Bail To BSF Officer In SI-Recruitment Scam

Case Title: Karnail Singh Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 57

The Jammu and Kashmir and Ladakh High Court rejected the bail application of a BSF officer, alleged to be the main accused in the J&K Service Selection Board Police sub-inspector recruitment scam case observing that grant of bail in economic offences which affect a larger section of the society on the mere fact that the offence with which an accused is charged does not carry a very severe punishment does not by itself create a ground to enlarge the accused on bail.

A bench comprising Justice Sanjay Dhar, while rejecting the bail application of the accused, a Border Security Force (BSF) Commandant (Medical), observed,

"A person, who indulges in facilitating leakage and sale of question papers relating to competitive examinations, plays with the career and future of thousands of young aspirants. Such an act is more heinous than an offence of murder because by killing a person only one family gets affected but by ruining the career of thousands of aspirants, whole society is adversely impacted".

Once Magistrate Seeks Preliminary Report On Allegations Made In Application U/S 156(3) CrPC, Police Cannot Straightaway Lodge FIR: Jammu & Kashmir HC

Case Title: Farooq Ahmad & Ors Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 58

The Jammu and Kashmir and Ladakh High Court observed that when a Magistrate directs a preliminary enquiry under Section 156(3) CrPC and the police without reporting back to the Magistrate straightway goes on to file an FIR without any direction thereto, the same amounts to usurpation of the powers of the Magistrate.

Revisional Powers U/S 102 Juvenile Justice Act Vested With High Court, Cannot Be Exercised By Sessions Court/ Children's Court: Jammu & Kashmir HC

Case Title: Master X th. Shah Wali Vs State of J&K

Citation: 2023 LiveLaw (JKL) 59

The Jammu and Kashmir and Ladakh High Court made it clear that a Sessions Court or a Children's Court cannot entertain a revision petition against the order of Juvenile Justice Board.

Justice Sanjay Dhar observed that the power of revision under Section 102 of the Juvenile Justice Act is vested with the High alone. "No such power is vested with the Court of Sessions or Children's Court," the bench remarked.

S.25F ID Act Not Complied: Jammu & Kashmir High Court Says Acceptance Of Compensation Won't Estop Workmen From Challenging Retrenchment

Case Title: India Tourism Development Corporation Limited & Anr Vs Fayaz Ahmad Sheikh & Ors.

Citation: 2023 LiveLaw (JKL) 60

The Jammu and Kashmir and Ladakh High Court ruled that in cases where there is a failure on the part of an employer to abide by the prescription of Section 25 of the Industrial Disputes Act 1947, the application of doctrine of Estoppel cannot lie against the employee who accepted compensation, while challenging his retrenchment order.

A bench comprising Justices Rajnesh Oswal and Mohan Lal observed,

"From the records, it is established that the retrenchment amount was paid to the Respondents in utter disregard of Section 25-F of the Act of 1947 and, therefore, once the employer has not followed the statutory obligation, then the acceptance of the retrenchment amount would not to be an estoppel for the workmen to challenge the order of retrenchment...If the manner of doing a particular act is prescribed under any Statute, then the act must be done in that manner only. Once an act prescribed under any Statute is not done in accordance with the conditions prescribed for its performance, then the doer of the said act cannot derive any benefit of that Act."

Jammu & Kashmir High Court Permits Minor Rape Victim To Medically Terminate 30 Weeks Old Pregnancy

Case Title: Ms. X (MINOR) Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 61

The Jammu and Kashmir and Ladakh High Court allowed the medical termination of a 30 week unwanted foetus, observing that while exercising the powers under Article 226 of the Constitution, a Constitutional Court has got wider powers than what is prescribed under Section 3(2) of the MTP Act of 1971.

No Distinction Between Retired & Inservice Employees For Prosecution Under Jammu & Kashmir Prevention Of Corruption Act: High Court

Case Title: Bopinder Singh Dua Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 62

The Jammu and Kashmir and Ladakh High Court made it clear that even retired employees of a Public Corporation can be be prosecuted under the Jammu & Kashmir Prevention of Corruption Act, if the circumstances so warrant.

Justice Javed Iqbal Wani observed that Section2(2)(c) of the Act, which defines 'Public Servant', is wide enough to include inservice as well as retired officer/servants/ member of the Corporation.

Can't Direct Govt To Enforce Strict Prohibition On Liquor, Directive Principles Not Enforceable: Jammu & Kashmir High Court

Case Title: Manzoor Ahmad Dar Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 63

Observing that Courts cannot issue a writ of mandamus for enforcing the directive principles of State policy, the Jammu and Kashmir and Ladakh High Court closed a petition seeking closure of liquor shops and establishments in the UT, besides seeking rehabilitation of those engaged in this business.

The bench comprising Justices Sanjeev Kumar and Puneet Gupta was hearing a plea seeking recall of the order passed by the division bench of the court on October, 27, 2015, in a Public Interest Litigation (PIL) which was filed by Karwani Islami Society, registered under the Societies Registration Act, 1998, seeking direction to the erstwhile State of J&K, to take necessary steps for prohibition of sale and consumption of liquor in the erstwhile State of J&K.

Order XLVII CPC | Erroneous View Of Law Not A Ground For Review: Jammu & Kashmir High Court

Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.

Citation: 2023 LiveLaw (JKL) 64

The Jammu & Kashmir and Ladakh has reiterated that an erroneous view of law is not a ground for review and a court cannot rehear and correct an erroneous judgment by way of a review.

"I am afraid the scope of review cannot be extended to re-appreciation of the evidence led by the parties before the trial court nor can this Court, in exercise of its power of review, sit over its own judgment regarding interpretation of a document," Justice Dhar explained.

General Allegations Of Insult Without Demonstrating Provocation To Breach Public Peace Won't Attract S.504 IPC: Jammu & Kashmir High Court

Case Title: Jia Lal Vs UT of J&K & Anr

Citation: 2023 LiveLaw (JKL) 65

The Jammu & Kashmir and Ladakh High Court observed that a mere act of insulting a person would not satisfy the ingredients of section 504 IPC ( Intentional insult with intent to provoke breach of the peace), rather insulting should be of such a nature as would give provocation to the person insulted to break the public peace or to commit any other offence, in order to attract the offence.

MV Act | Insurer Cannot Escape Liability On Premise That Legal Heirs Of DCase Title: IFFCO TOKIO General Insurance Co. Ltd Vs Om Prakash.

Case Title: IFFCO TOKIO General Insurance Co. Ltd Vs Om Prakash.

Citation:2023 LiveLaw (JKL) 66

The Jammu and Kashmir and Ladakh High Court has ruled that the insurer cannot escape its liability to pay compensation to the claimants on the ground that the legal heirs of the deceased owner were not made parties to the claim petitions

Object Of Jurisdiction Under Article 226 Is Enforcement, Not Establishment Of Right/ Title, Can't Decide Disputed Facts: Jammu & Kashmir High Court

Case Title: Ghulam Nabi Vs State

Citation: 2023 LiveLaw (JKL) 67

Declining to display indulgence and exercising its jurisdiction under Article 226 of the Constitution, the Jammu and Kashmir and Ladakh High Court observed that the object of jurisdiction under Article 226 is the enforcement and not the establishment of right or title and hence a disputed question of fact cannot be investigated in a proceeding under Article 226 of the Constitution.

Civil Service Rules | Failure To Produce Chargesheet Within 3 Months Does Not Automatically Vitiate Employee's Suspension: Jammu & Kashmir High Court

Case Title: UT of J&K Vs Munshi Masood

Citation: 2023 LiveLaw (JKL) 68

Setting aside an order of Central Administrative Tribunal Srinagar, in terms of which it had quashed the suspension of an employee on the ground of his prolonged suspension, the Jammu and Kashmir and Ladakh High Court has recently ruled that failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension.

A bench comprising Justices Sanjeev Kumar and Puneet Gupta observed,

"It is true ordinarily whenever a Government servant is placed under suspension on a criminal charge, endeavour should be made to produce the charge sheet before the competent court of law within a period of three months. The failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension".

Jammu & Kashmir High Court Imposes ₹1L Cost On CWC And JJB Members For "Forum Shopping" Regarding Their Re-Appointments

Case Title: Dr. Khair-Un-Nisa and others Shalini Sharma and others Vs UT of J&K & others.

Citation: 2023 LiveLaw (JKL) 69

The Jammu & Kashmir and Ladakh High Court dismissed a petition to quash and set aside an advertisement notification for selections to constitute Juvenile Justice Boards and Child Welfare Committees under the Juvenile Justice (Care and Welfare) Act, 2015.

"The re-agitation of the issue may or may not be barred by the principle of “res judicata” but the same may, in the given circumstances, tantamount to an abuse of process of Court", the court said.

Investigation Into Non-Cognizable Offences Without Magistrate's Permission Can't Be Regularised By Subsequently Adding Cognizable Offences: J&K High Court

Case Title: Nikunj Sharma Vs State of J&K and another

Citation: 2023 LiveLaw(JKL) 70

The Jammu and Kashmir and Ladakh High Court ruled that once an FIR is registered for non-cognizable offences, the inclusion of a cognizable offence at a later stage of the investigation could not be used to circumvent the law.

Inadvertence To Produce Document Not Substantial Cause To Invoke Order XLI Rule 27 CPC: Jammu & Kashmir High Court

Case Title: Mohammad Maqbool Regu and ors Vs Hilal Ahmad & Ors.

Citation: 2023 LiveLaw (JKL) 71

The Jammu and Kashmir and Ladakh High Court ruled that inadvertence on the part of a party to produce a document before the Court cannot be construed as a substantial cause within the meaning of Rule 27 of Order XLI of the Civil Procedure Code(CPC) to allow application for production of additional documents.

"Mere fact that certain evidence is important per se is not in itself a sufficient ground for admitting that evidence in appeal," Justice Javed Iqbal Wani remarked.

S.311 CrPC Asserts Power Of Courts To Recall & Summon Witnesses Even After Closure Of Evidence In Criminal Proceedings: Jammu & Kashmir High Court

Case Title: Farid Ahmad Tak Vs UT of J&K & Ors

Citation: 2023 LiveLaw (JKL) 72

The Jammu and Kashmir and Ladakh High Court reiterated that power of the court under Section 311 CrPC to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence in both sides is closed, so long as the court retains seisin of the criminal proceedings.

The High Court observed that Section 311 of CrPC envisages that any court may, at any stage of any inquiry, trial or other proceedings, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. The said power is not confined to any particular class of person, it said.

Jugglery, Manipulation Has No Place In Courts: Jammu & Kashmir HC Upholds Imposition Of Exemplary Cost On Party For Suppressing Material Facts

Case Title: Fayaz Ahmad Rather Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 73

Upholding a single judge verdict wherein the writ court had imposed Rs one lakh penalty on petitioner for suppressing material facts and misleading the court to gain advantage over the other side, the Jammu and Kashmir and Ladakh High Court observed that that jugglery, manipulation, maneuvering or misrepresentation has no place in equitable and prerogative jurisdiction.

The bench maintained,

"Suppression of material facts, concealment of full details of litigation, present and past, between the parties qua subject matter of dispute, distortion or manipulation of relevant facts, misleading the court by stating false facts or withholding true facts disentitle a party to invoke equitable jurisdiction under Article 226 of Constitution of India,".

[BSF] Jammu & Kashmir High Court Upholds Widow's Rights To Family Pension Despite Divorce Proceedings Pending During Husband's Lifetime

Case Title: Sonika Sharma vs Union of India

Citation: 2023 LiveLaw (JKL) 74

The Jammu and Kashmir and Ladakh High Court ruled that a widow cannot be denied family pension after husband's death on the ground that during his lifetime, divorce proceedings were ongoing between the couple.

There is not even a single provision of law quoted in the reply/objections by the respondents as to on what basis the respondents are enabling themselves to deny the petitioner her claim for sanction and grant of family pension," the bench underscored.

No Self-Respecting Woman Would Normally Concoct Rape Allegations Putting Her Character, Marriage Prospects On Stake: Jammu & Kashmir High Court

Case Title: Sunil Kumar Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 75

Dismissing the bail plea of a man accused of raping a 10-year-old daughter of his neighbour, the Jammu and Kashmir and Ladakh High Court observed that normally no woman would put her character at risk by falsely implicating a man for rape.

"Since rape leaves a permanent scar on the most cherished possession of woman and serious psychological impact on the victim and her family, the prosecutrix as in the case in hand, would not therefore, have concocted story of rape against petitioner/accused to falsely implicate him by putting her honour, character, reputation and her future marriage prospects on stake in the society. Ordinarily, the offence of rape is grave by its nature," bench of Justice Mohan Lal observed.

Magistrate Can Order Second Inquiry U/S 202 CrPC Into Unexplored Allegations In Complaint: Jammu & Kashmir High Court

Case Title: Raj Kumar Vs SSP & Anr

Citation: 2023 LiveLaw (JKL) 76

The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate is well within his jurisdiction to order an in depth enquiry under Section 202 CrPC, if the first report submitted by the enquiry officer lacks enquiry into certain allegations levelled in the complaint.

NDPS Act | Prosecutor Is Independent Statutory Authority, Must Apply Independent Mind To Justify Extension For Investigation: Jammu & Kashmir High Court

Case Title: Rizwan Bashir Dhobi Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 77

The Jammu and Kashmir and Ladakh High Court observed that a Public Prosecutor, being an independent statutory authority, is expected to apply his independent mind to the material produced before him by the Investigating Agency and thereafter take a decision as to whether or not extension of time for completing the investigation is justified in the facts and circumstances of the case.

Proceedings Before Mediator Confidential, Parties Can't Be Compelled To Abide By Offers Made During Negotiations: Jammu & Kashmir High Court

Case Title: Mohammad Abdullah Bhat Vs Nazir Ahmad Bhat & Ors.

Citation: 2023 LiveLaw (JKL) 78

The Jammu and Kashmir and Ladakh High Court reiterated that proceedings conducted before a Mediator are confidential in nature and the parties cannot be compelled to abide by what was offered by them during the negotiations before the Mediator.

S.265F J&K CrPC | Conviction Under Provisions Of Plea Bargaining Does Not Affect Character Antecedents Of Individual Seeking Employment: High Court

Case Title: Amjid Hussain Khan Vs State of J&K

Citation: 2023 LiveLaw (JKL) 79

The Jammu and Kashmir and Ladakh High Court ruled that conviction and sentencing of a convict by the trial court under the provisions of plea bargain as contained in Chapter XXII-A of J&K CrPC does not affect the character antecedents of an individual and hence cannot disable him from seeking a public employment.

Succession Certificates Under Indian Succession Act 1925 Do Not Confer Any Titles: Jammu & Kashmir High Court Explains

Case Title: Sheikh Mohammad Amin and another Vs Yasir Farooq and others

Citation: 2023 LiveLaw (JKL) 80

The Jammu and Kashmir and Ladakh High Court ruled that the proceedings for grant of a succession certificate under the Indian Succession Act 1925 are of summary nature and do not confer any title to the amount in favour of the certificate holder.

[S.138 NI Act] Magistrate Has Judicial Discretion To Dispense Personal Appearance Of Accused: Jammu & Kashmir High Court

Case Title: Emaad Muzaffar Makhdoomi vs Vikar Ahmad Bhat

Citation: 2023 LiveLaw (JKL) 81

The Jammu and Kashmir and Ladakh High Court made it clear that a Magistrate dealing with a complaint under Section 138 of the Negotiable Instruments Act can waive personal appearance of the accused, if it finds that insistence of his personal appearance would itself inflict enormous suffering or tribulations to the accused.

Justice Javed Iqbal Wani observed,

"Such discretion needs to be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons, the Magistrate feels that dispensing with the personal appearance of the accused would only be in the interest of justice. However, the Magistrate who grants such concession to the accused must have to grant the same subject to the aforesaid riders as a matter of course."

Jammu & Kashmir High Court Quashes 2022 Village Defence Guard Scheme To The Extent It "Denudes" SPOs Of Their Status & Privileges Under Old Scheme

Case Title: Madan Lal & Ors Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 82

The Jammu and Kashmir and Ladakh High Court quashed the Village Defence Group Scheme-2022 issued by the Government to the extent it has the effect of denuding the petitioners (heads of the Village Defence Groups) of their status as SPOs (Special Police Officers) and the power and privileges conferred on them by the Village Defence Group Scheme-1995.

"Can't Travel Beyond Original Judgment": Jammu & Kashmir HC Rejects Contempt Plea Against Health Dept For Excluding AYUSH Doctors From Performance Incentives

Case Title: Robkar Vs Vivek Bhardwaj & Ors

Citation: 2023 LiveLaw (JKL) 83

The Jammu and Kashmir and Ladakh High Court refused to initiate contempt action against officials of National Rural Health Mission (NRHM) for exclusion of AYUSH doctors from grant of performance based incentives offered to MBBS doctors.

The bench reiterated that the power of contempt is of a special nature and it needs to be exercised with care and caution; a Court cannot travel beyond the original judgment while exercising its contempt jurisdiction, it said.

Allegation Of Corrupt Practices Against Public Servant Can't Be Considered Defamatory Without Proving Malice: Jammu & Kashmir High Court

Case Title: Sheikh Khalid Jehangir Vs Nayeem Akhter

Citation : 2023 LiveLaw (JKL) 84

Quashing a complaint involving allegations of defamation against a Senior Office Bearer of a Public Sector Corporation for writing a letter to the Governor of Jammu and Kashmir highlighting acts of omission and commission in the J&K Project Construction Corporation, the Jammu and Kashmir and Ladakh High Court observed that every citizen has a right to comment on those acts of public men which concerns him as a citizen of the Country, if he does not make his commentary a cloak for Malice and Slander.

Article 144 | Police Force Bound By Supreme Court's Decisions To Protect Marital Freedom Of Consenting Adults: Jammu & Kashmir High Court

Case Title: Afsana Kouser Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 85

Highlighting Article 144 of the Constitution which mandates all government authorities to abide Supreme Court decisions, the Jammu and Kashmir High Court came to the rescue of an adult woman apprehending life threat for marrying a person of her choice.

Justice Rahul Bharti observed,

"Article 144 of the Constitution of India mandates all Authorities, Civil and Judicial, in the territory of India to act in aid of the Hon'ble Supreme Court. Bearing this constitutional sanction in perspective and the directions of the Hon'ble Supreme Court set into place, it is a matter of duty for the Police Officials as well as officials of the concerned Civil Administration, irrespective of hierarchical position, to ensure that marrying individuals who are major and have chosen to become husband and wife out of their free will and volition are not to fear anybody causing any harm to their life and limb."

Disciplinary Authority Must Show "Wilful" Absence To Terminate Employee: Jammu & Kashmir High Court Sets Aside CRPF Constable's Termination

Case Title: Mohd Ashraf Shah Vs Union of India

Citation: 2023 LiveLaw (JKL) 86

Reinstating a CRPF constable, the Jammu and Kashmir and Ladakh High Court ruled that the Disciplinary Authority must prove that an employee's unauthorized absence from duty was willful before it can be considered as misconduct and lead to termination.

Party Availing Legal Remedies Against Unfavourable Order Can't Be Pressurised By Initiating Contempt Action: Jammu and Kashmir High Court

Case Title: Gull Mohammad Bhat Vs Raj Kumar Goyal and others

Citation: 2023 LiveLaw (JKL) 87

A party has a right to avail the appropriate remedy before the higher forum under law and right to avail the appropriate remedy cannot be throttled by any process whatsoever, the Jammu and Kashmir and Ladakh High Court observed while dismissing a contempt petition.

Justice Wasim Sadiq Nargal observed that the right to avail the appropriate remedy as envisaged under law can by no stretch of imagination can be construed as an obstruction in the course of justice.

Major, Earning Children Entitled To 'Loss Of Dependency' Compensation On Parent's Death In Motor Accident: Jammu & Kashmir High Court

Case Title: Jamal Din & Ors Vs New India Assurance.

Citation: 2023 LiveLaw (JKL) 88

The Jammu & Kashmir and Ladakh High Court ruled that even if children claiming compensation under the Motor Vehicle Act on death of parent are major and earning, they are entitled to claim compensation on the ground of 'loss of dependency'.

"It is settled law that the legal representatives of the deceased have a right to apply for compensation and it must necessarily follow that even major and earning sons of deceased being legal representatives have a right to apply for compensation and it would be bounded duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on deceased or not, to limit the claim towards the conventional head only," the Court said.

Order XXIII Rule 3 CPC Cannot Be Imported To Deal With Complaints U/S 138 Negotiable Instruments Act: Jammu & Kashmir High Court

Case Title: Mohammad Ashraf Wani Vs Muzamil Bashir.

Citation: 2023 LiveLaw (JKL) 89

The Jammu and Kashmir and Ladakh High Court ruled that the provisions of Order XXIII Rule 3 of the CPC cannot be imported to deal with a complaint under Section 138 of the Negotiable Instruments Act.

A bench of Justice Javed Iqbal Wani observed that Section 138 of the Act is quasi-criminal and,

"The Magistrate could not have relied upon the aforesaid provisions of CPC while dealing with the case of a criminal offence under Section 138 of the Act which proceedings are regulated by the Code of Criminal Procedure".

Motor Accident Tribunal Can Pass Award U/S 166 Only After Proper Notice To Respondents And Affording Hearing: Jammu & Kashmir High Court

Case Title: Ghulam Nabi Turrey Vs Farooq Ahmad Thokar and Another

Citation: 2023 LiveLaw (JKL) 90

Setting aside an award of compensation passed by Motor Accidents Claims Tribunal, Shopian against a person without any notice to him, the Jammu and Kashmir and Ladakh High Court ruled that a man cannot incur the loss of property or liberty for an offence by a judicial proceedings until he has a fair opportunity of answering the case against him.

Justice Wasim Sadiq Nargal observed,

"It is only after giving a notice of the application to the respondents and affording them an opportunity of being heard and also after holding a proper enquiry into the matter, the Tribunal can pass an award, determining the amount of compensation which appears to be just, payable by the respondents. The law is settled at naught that when an award is passed at the back of a party and without affording him/her an opportunity of being heard, it is legally invalid."

Jammu & Kashmir High Court Quashes Journalist's Detention Under PSA, Says Detaining Authority Used Public Order, State Security With "Wavering Mind"

Case Title: Peerzada Shah Fahad Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 91

Observing that the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty, the Jammu and Kashmir High Court quashed the detention order of Journalist Fahad Shah.

A bench of Justice Wasim Sadiq Nargal observed,

"Maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of aside".

Mere Registration Of FIR Against Accused When He Was On Interim Bail Does Not Amount To Breach Of Bail Conditions: Jammu & Kashmir High Court

Case Title: Janbaz Ahmad Dass Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 92

The Jammu and Kashmir and Ladakh High clarified that the registration of an FIR against an accused does not constitute a breach of their interim bail conditions, as it is merely a preliminary step in the legal process and does not necessarily indicate criminal activity.

The bench of Justice Sanjay Dhar observed,

"Mere registration of an FIR against the petitioner during the pendency of his bail application when he was on interim bail, cannot amount to violation of the conditions of interim bail. This is so because mere registration of FIR does not mean that the petitioner had indulged in subversive activities or in any offence or any criminal activity thereby violating one of the conditions of bail".

Injunction | If Party Fails To Establish Prima Facie Case, Court Not Required To Consider Balance Of Convenience, Irreparable Loss: J&K High Court

Case Title: Surinder Partap Singh and another Vs Vijay Kumar and Anr.

Citation: 2023 LiveLaw (JKL) 93

The Jammu and Kashmir and Ladakh High Court reiterated that If a party fails to prove a prima facie case, the court cannot grant an injunction, even if the balance of convenience and irreparable loss and injury are in their favour

S.306 CrPC No Bar On High Court To Invoke Its Powers U/S 482 And Admit An Approver On Bail: Jammu & Kashmir High Court

Case Title: Tariq Ahmad Dar Vs NIA.

Citation: 2023 LiveLaw (JKL) 94

The Jammu and Kashmir and Ladakh High Court reiterated that in terms of Sec 306(4) (b) CrPC bail to approver who is in custody cannot be granted, however, in an appropriate case High Court can release the approver on bail in exercise of its inherent powers under Section 482 CrPC.

J&K State Cooperative Bank Independent From Govt Control, Service Disputes Outside Court's Writ Jurisdiction: Jammu & Kashmir High Court

Case Title: Ghulam Rasool Dar Vs J&K State Cooperative Bank

Citation: 2023 LiveLaw (JKL) 95

The Jammu and Kashmir and Ladakh High Court ruled that the J&K State Cooperative Bank Ltd is an autonomous body with no pervasive or deep control by the government and hence the bank's actions falling within the sphere of private law, including service disputes with its employees, are not amenable to the writ jurisdiction of the court.

Notice Issued By Adjudicating Authority To Initiate Proceedings Under FEMA Not Appealable, Writ Petition Maintainable: Jammu & Kashmir High Court

Case Title: Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors

Citation: 2023 LiveLaw (JKL) 96

The Jammu and Kashmir and Ladakh High Court clarified that appeals before the Special Director (Appeals) in FEMA cases are only maintainable against orders passed by the Adjudicating Authority under Rule 4(8) of the 2000 Rules, and not against any prior proceedings initiated by the Authority.

Justice Sanjay Dhar thus held that a notice issued by the adjudicating authority to initiate proceedings against a party under Section 13 FEMA is not an 'order' and is not appealable and thus, a writ petition assailing the same is maintainable.

Erroneous Findings By Courts Below Not Ground To Invoke Article 227, "Manifest Miscarriage Of Justice" Required: Jammu & Kashmir High Court

Case Title: M/s Ajay Auto Mobiles Vs TVS Motor Company Ltd. and others

Citation: 2023 LiveLaw (JKL) 97

The Jammu and Kashmir and Ladakh High Court has dismissed a petition filed under Article 227 of the Constitution of India against an order passed by the trial court, which referred a dispute for arbitration. It observed that erroneous finding by the courts below on facts and law cannot justify for approaching the court under Article 227 unless manifest miscarriage of justice has occurred due to the order passed by the courts below.

CPC | 120 Days Period For Filing Written Statement Mandatory In Jammu & Kashmir After Abrogation Of Article 370, Court Has No Power To Extend It: High Court

Case Title: Rajinder Singh Manhas Vs Anil Gaind & Anr.

Citation: 2023 LiveLaw (JKL) 98

The Jammu and Kashmir and Ladakh High Court clarified that the Civil Procedure Code, 1908 so far as its applicability to the Union Territory of Jammu & Kashmir is concerned after amendments in view of Abrogation of Article 370, provides a maximum period of 120 days to the defendant to file the written statement failing which the defendant will forfeit the right to file written statement and the Court by no stretch of imagination shall allow the written statement to be taken on record.

Deaths By Electrocution Ignored As Mere Accidents: Jammu & Kashmir High Court Constitutes Committee To Enforce Statutory Regulations

Case Title: Renu Bala &Ors Vs State &Ors

Citation: 2023 LiveLaw (JKL) 99

Taking a serious note of increasing incidents of electric shocks often leading to death, the Jammu & Kashmir & Ladakh High Court constituted a committee to ensure the implementation of statutory safety measures and regulations enshrined in the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010, in letter and spirit.

A bench comprising Justice Wasim Sadiq Nargal observed,

“It appears that deaths due to electrocution as well as bodily injuries due to electric shocks are ignored as mere accidents...The colossal loss of human lives and especially children is totally unacceptable, grim and heart rending, such unfortunate deaths continue to occur and the statutory regulations are being flouted with impunity which is the root cause of such deaths/accidents".

No Person Can Be Deprived Of Source Of Livelihood Without Adhering To Principles Of Natural Justice: Jammu & Kashmir High Court

Case Title: Zahoor Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 100

The Jammu and Kashmir and Ladakh High Court ruled that even if a person hands over documents that were summoned by an authority, the same does not give the authority a free hand to disregard the person's right to a fair hearing.

A bench comprising Justice Sanjay Dhar observed,

"Adherence to the principles of natural justice is not an empty formality. No person can be deprived of his property or source of livelihood without adhering to the principles of natural justice and without following the procedure prescribed under law".

Jammu & Kashmir High Court Dismisses Plea Of Cooperative Society Employees For Retirement Age Parity With Govt Employees

Case Title: Mohammad Maqbool Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 101

The Jammu and Kashmir and Ladakh High Court dismissed the plea of Cooperative Societies employees seeking age of retirement at par with the Government employees.

Justice Sanjay Dhar observed that the Cooperative Societies are autonomous institutions governed by their own rules and regulations and hence their employees cannot seek parity in service conditions with the employees of the Government, unless approved by the Board of Directors.

Power To Transfer Undertrial Prisoner From One Jail To Another Only With Court: Jammu & Kashmir High Court

Case Title: Nayeem Rasool Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 102

The Jammu & Kashmir and Ladakh High Court ruled that the power to direct transfer of an undertrial prisoner from one jail to another vests only with the Magistrate/ Court which had remanded the detenue to a certain prison, and not with the prison authorities.

A bench comprising Justice M A Chowdhary referred to Prison Manual, 2022- For the Superintendence and Management of Prisons in the Union Territory of Jammu and Kashmir read with Prisoners Act, 1900 and observed,

"The power to remand or transfer of an undertrial prisoner from one jail to another is to be exercised by the Court by passing a judicial order, obviously after providing opportunity of being heard and that the change in the place of detention would be permissible only with the permission of the Court under whose warrant the undertrial has been remanded to custody."

Narco-Terrorism Serious Threat To National Security: Jammu & Kashmir High Court Refuses To Interfere With Alleged Drug Trafficker's Detention

Case Title: Mohammad Ashraf Dar vs UT Of J&K.

Citation: 2023 LiveLaw (JKL) 103

Observing that the involvement of various terrorist groups and syndicates in drug trafficking leads to threat to the national security and sovereignty of States by way of Narco terrorism, the Jammu and Kashmir and Ladakh High Court dismissed the plea of an alleged drug trafficker, detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988.

Orders Framing, Altering Or Refusing To Alter Charges Under NIA Act Are Interlocutory & Not Appealable: Jammu & Kashmir High Court

Case Title: Ayaz Ahmad Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 104

The Jammu and Kashmir and Ladakh High Court ruled that a Special Court's order framing charge or altering or refusing to alter the charge under the National Investigating Agency Act is an interlocutory order and not appealable under Section 21.

Vaishno Devi Stampede: Jammu & Kashmir High Court Closes PIL To Make Inquiry Report Public, Says Steps Taken By Shrine Board Satisfactory

Case Title: Sheikh Shakeel Ahmed Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 105

The Jammu and Kashmir and Ladakh High Court expressed its satisfaction with the measures taken by the Vaishno Devi Shrine Board to streamline the yatra and ensure safety of pilgrims, following the deadly stampede in the intervening night of 2021-22.

After perusing the record and detailed reply affidavit, Justice Nargal writing for the bench opined that the Shrine Board has taken all measures including short term, medium and long term with a view to streamline the yatra, besides taking all safety measures for the safety of the pilgrims. Not only this, even the Board has undertaken various activities through its Administration and Operations Wing, for better management and facilitation of pilgrims, the bench added.

No Sales Tax On Supply Of Goods For Erecting Transmission Lines, Substations & Power Grids Before 15.05.1997: Jammu & Kashmir And Ladakh High Court

Case Title: M/S Power Grid Corporation of India Ltd. Versus Assessing Authority Sales Tax Circle D Jammu

Case No.: STR No. 03/2022

Citation: 2023 LiveLaw (JKL) 106

The Jammu & Kashmir And Ladakh High Court held that no sales tax is exigible for the supply of goods for erecting transmission lines, substations, and power grids.

The bench of Justice Sanjeev Kumar and Justice Rajesh Sekhri has observed that the transaction between the assessee and the contractors in which the assessee has supplied the goods and material purchased by it from outside the State against C-Forms for the purpose of erecting transmission lines, sub-stations, and power grids for itself did not amount to “sale” as it was defined under Section 2(L) of the GST Act before 15.05.1997.

Land Acquisition For Ring Road Not Notified As National Highway But Part Of NH Project Must Be Under NHAI Act: Jammu & Kashmir High Court

Case Title: Land Owners of Village Suthsoo and others Vs State of J&K

Citation: 2023 LiveLaw (JKL) 107

The Jammu and Kashmir and Ladakh High Court ordered that all land required for the construction of the Srinagar Ring Road must be acquired in accordance with the National Highways Act, 1956. The court also ruled that additional compensation of 20% must be paid to those whose land has been acquired for the project.

The court observed that the Srinagar Ring Road Project is a national highway project and needs to be treated as part of existing National Highway 1A. It is not necessary to declare it a national highway under Section 2 of the NH Act, 1956 until it is completed, however, the Central Government is obliged in law, in terms of Section 3A, to initiate the process of acquisition under the NH Act, 1956, it held.

Jammu & Kashmir High Court Quashes Imam's Detention Under PSA, Raps Detaining Authority For Acting On Vague Grounds

Case Title: Molvi Mohammad Amin Pala Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 108

The Jammu and Kashmir and Ladakh High Court quashed the detention order of an Imam, accused of delivering speeches to mobilize common masses against the sovereignty and integrity of the Union Territory of Jammu and Kashmir.

Justice M A Chowdhary observed that the grounds of detention are vague and stale, lacking any specific instances or incidents to justify the detainee's preventive detention.

Safe Custody Of Alleged Contraband And Swift Forensic Analysis Essential: Jammu & Kashmir High Court On Prosecution's Obligations In NDPS Case

Case Title: UT of J&K Vs Pradeep Singh( Now Dead)

Citation: 2023 LiveLaw (JKL) 109

The Jammu and Kashmir and Ladakh High Court emphasized on the prosecution's obligation under Section 55 of the Narcotic Drugs and Psychotropic Substances Act to prove that the contraband after its recovery and seizure from the accused was kept in safe custody and that the sample of the contraband was forwarded to Forensic Science Laboratory without any delay.

Order XIV Rule 5 CPC | Court Cannot Frame Issues Beyond Pleadings: Jammu & Kashmir High Court

Case Title: Farooq Ahmad Mir Vs Nisar Ahmad Wani and others

Citation: 2023 LiveLaw (JKL) 110

The Jammu and Kashmir and Ladakh High Court clarified that scope of the power granted to courts under Order XIV Rule 5 of the Civil Procedure Code to amend, add, delete, or strike out issues is not absolute and is subject to the provisions of Rule 3 of Order XIV, which limits the framing of issues to materials comprising allegations made in pleadings, answers to interrogatories, documents produced, or statements made on oath.

A bench of Justice Javed Iqbal Wani observed,

"The power enshrined in Order 14, Rule 5, however, is controlled by the provisions of Rule 3 of Order 14 which provides that the court may frame issues from all or any of the materials comprising allegations made in the pleadings or in answers to interrogatories, documents produced by the parties, allegations made on oath by the parties or by any person present on their behalf, or statements made by the pleaders appearing for the parties, upon examination of witnesses or inspection of the documents".

Question Paper Leakage In Govt Exams Shakes Public Confidence: Jammu & Kashmir High Court Refuses Bail To Accused Officer, Son In SI Recruitment Scam

Case Title: Ashok Kumar Vs CBI

Citation: 2023 LiveLaw (JKL) 111

Observing that a recruitment scam in government services undermines public confidence in the system and causes grave injustice to deserving and meritorious candidates, the Jammu and Kashmir High Court rejected the bail application of a police officer and his son who were arrested by the CBI last year in connection with the infamous JKSSB Police Sub-Inspector Recruitment Scam.

"The offence is against the society as whole as due to the said huge scam carrier of hundred and thousands of candidates/aspirants for the post of Sub Inspector has been ruined/marred. Question paper leakage damages the future of our young generation and this criminal act cannot be compared with scams involving million of rupees, as the said crime is against the society at large", the bench underscored.

Preliminary Inquiry Necessary When There Is Abnormal Delay By Complainant In Initiating Criminal Prosecution: Jammu & Kashmir High Court Reiterates

Case Title: Harbachan Singh Vs Sr. Superintendent of Police Srinagar and others

Citation: 2023 LiveLaw (JKL) 112

The Jammu and Kashmir and Ladakh High Court reiterated that when there is abnormal delay by complainant in initiating criminal prosecution, it becomes necessary for the Magistrate to order a preliminary inquiry.

Justice Javed Iqbal Wani observed this inquiry can help identify any potential obstacles in the prosecution process and determine the reasons for the delay, such as missing evidence or witnesses.

Public Safety Act | Preventive Detention Not An Arrest, No 24-Hour Magistrate Appearance Required: Jammu & Kashmir High Court

Case Title: Muntazir Ahmad Bhat Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 113

The Jammu and Kashmir and Ladakh High Court ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. Instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a magistrate within 24 hours, it clarified.

Banks Can Exclude Such Borrowers From OTS Scheme From Whom Chances Of Recovery Are High: Jammu & Kashmir High Court

Case Title: Ghulam Ahmad Mir Vs J&K Bank & Ors.

Citation: 2023 LiveLaw (JKL) 114

The Jammu and Kashmir and Ladakh High Court ruled that a banking company enjoys the discretion to formulate policies and exclude from its One Time Settlement Scheme such borrowers, who have a higher chance of recovery.

A bench comprising Justice Sanjay Dhar observed,

"A banking company is free to make policies and issue guidelines so as to differentiate the cases of those borrowers where the chances of recovery are bright from those where the chances of recovery are bleak. Merely because a banking company has formulated a scheme excluding the cases of borrowers where the chances of recovery are bright, it cannot be stated that such a scheme or such covenants of the scheme are discriminatory in nature against the excluded borrowers."

BSF Personnel Can't Be Terminated Without Opportunity Of Hearing Even If Court Of Enquiry Concludes Trial Is Inexpedient: Jammu & Kashmir High Court

Case Title: Hem Raj Vs Union of India & Ors.

Citation: 2023 LiveLaw (115)

The Jammu and Kashmir and Ladakh High Court ruled that under Rule 22 of the BSF Rules 1969, it is mandatory to inform the accused of all adverse reports against them and provide them with an opportunity to defend themselves in writing, even if a Court of Enquiry has concluded that trial of such person is inexpedient.

Justice Javed Iqbal Wani observed,

"Even if it is assumed that the respondents could proceed against the petitioner under Rule 22 supra while opining that it is inexpedient or impracticable to subject the petitioner to the trial for having overstayed leave, yet in terms of sub-Rule (2) of the Rules 22 supra, the respondents were mandatorily required to inform the petitioner together with all reports adverse to him besides providing an opportunity to him to submit in writing his explanation and defence."

J&K Police Manual Allows Discharge Of Probationer Without Assigning Reasons But No Stigmatic Citations Without Enquiry: High Court

Case Title: Shamim Ahmed Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 116

Clarifying the legal provisions for the discharge of a probationer under the Jammu & Kashmir Police Manual, the Jammu & Kashmir and Ladakh High Court held that an individual can be discharged without specifying the reasons behind the decision, however, if the discharge order cites deficiencies in the service of the incumbent, it could be deemed stigmatic and may not hold up in legal proceedings.

Jammu & Kashmir High Court Directs Motor Accident Tribunal To Decide Claim Filed By Dependants Of Judge Shot Dead By Militants In 2001

Case Title: Seema Phull and another Naina Sodi and others Vs United India Insurance Company and another

Citation: 2023 LiveLaw (JKL) 117

The Jammu and Kashmir and Ladakh High Court directed a Motor Accident Claims Tribunal to decide the petition moved by the dependants of a Judge, who was shot dead in his car by militants, while travelling to his hometown.

At the outset, Justice Sanjay Dhar observed that even when the vehicle is immobile, it cannot be stated the motor vehicle was not in use and an accident which arises at a time when the vehicle is not mobile, can well be termed as an "accident arising out of use of motor vehicle".

[Land Acquisition] Reference To Market Value Of Small Plots Not Always Reliable, But May Be Referred In Absence Of Other Material: Jammu & Kashmir HC

Case Title: Union Of India Vs Madan Lal & Ors.

Citation: 2023 LiveLaw (JKL) 118

The Jammu and Kashmir and Ladakh High Court ruled that in determining the market value of a large piece of land proposed for acquisition, it may not be safe to rely solely on the rate at which small parcels of land adjacent to it are sold.

However, the court reiterated that this cannot be an absolute rule as in cases where there is no other material available, the court may compare prices paid for small plots of land to arrive at a fair market value and this approach should not be dismissed outright.

Allotment Under Evacuees' Property Act Confers Only Temporary Right Of Use, Not Title Or Interest: Jammu & Kashmir High Court

Case Title: Bachan Lal. Vs J&K Special Tribunal

Citation: 2023 LiveLaw (JKL) 119

The Jammu and Kashmir and Ladakh High Court ruled that allotment under the Evacuees' Property Act is a temporary right of use and occupation of any immovable property and it neither confers any right nor title or interest over the allottee.

A single bench of Justice Rajesh Sekhri while referring to a full Bench judgment in Shamsher Singh v. Dy. Custodian 1973 General reiterated,

"Allotment is a mere license, which is revocable by the concerned authorities under certain conditions. It neither confers ownership nor interest in the land. The interest of an allottee arises only by statutory grant to displaced persons, which is not amenable to acquisition or alienation in any normal modes by way of sale, gift, mortgage or will".

Jammu & Kashmir High Court Rejects CRPF Constable's Plea Against Termination Citing Inordinate Delay, Questions His Suitability For Disciplined Force

The Jammu and Kashmir and Ladakh High Court upheld the termination of a CRPF Constable stating that his inability to justify the six-year delay in challenging his termination order raises concerns about his efficiency to serve in a disciplined force.

A single bench of Justice Moksha Kazmi Khajuria observed,

"The petitioner was supposed to challenge the termination order of 2001 at least after the same was provided to him by this court; the petitioner slept over the matter, remained in deep slumber's for about six years and filed this petition on the basis of the documents without any number, date or receipt...The doctrine of delay and latches is not to be taken so lightly when the petitioner has miserably failed to explain as to why he could not approach this Court after the termination order was furnished to him."

Court Not Having Territorial Jurisdiction Cannot Hear Application For Amendment Of Plaint To Acquire Jurisdiction: Jammu & Kashmir High Court

Case Title: Abdul Aziz Bhat & Ors Vs Hilal Ahmad Bhat.

Citation: 2023 LiveLaw (JKL) 121

The Jammu and Kashmir and Ladakh High Court ruled that when the court lacks territorial jurisdiction, it cannot entertain an application for amendment of a plaint, which amendment would vest territorial jurisdiction in the court.

A single bench of Justice Wasim Sadiq Nargal observed,

"The courts have to examine the plaint as existing and come to the conclusion whether it discloses the court to be having territorial jurisdiction or not; if the averments contained in the plaint as existing does not disclose the court to be having territorial jurisdiction and amendment is sought to vest territorial jurisdiction in the court , then the only option for the court is to return the plaint and the court will have no jurisdiction to even consider the application for amendment of the plaint".

Drivers With Heavy Goods Vehicle Licenses Can Also Drive Passenger Carrying Vehicles: Jammu & Kashmir High Court

Case Title: National India Insurance Vs Jagjeet Singh

Citation: 2023 LiveLaw (JKL) 122

The Jammu & Kashmir and Ladakh High Court ruled that individuals possessing a driving license for a specific type of commercial vehicle are deemed qualified to drive any other type of commercial vehicle as well.

A single bench of Justice Sanjay Dhar observed,

"Any person who was holding a driving license authorizes him to drive a particular type of commercial vehicle would automatically be eligible to drive any other type of commercial vehicle, meaning thereby that a driver holding a driving license to drive a heavy goods vehicle would be competent to drive a passenger carrying vehicle,".

Mere Protraction Of Trial Or Delay In Hearing Of Appeal By Itself Not Ground To Reduce Sentence: Jammu & Kashmir High Court

Case Title: Nazir Ahmad Ganai Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 123

The Jammu and Kashmir and Ladakh High Court has observed mere protraction of trial or delay in deciding the appeal cannot be considered as a valid reason for reducing the sentence, especially when the appellant has been granted interim bail during the appeal process.

Grounds In Detention Order Quashed By Writ Court Can't Be Considered While Passing Fresh Detention Order: Jammu & Kashmir High Court

Case Title: Showkat Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 124

The Jammu and Kashmir and Ladakh High ruled that when a Court quashes a detention order using a high prerogative writ, the grounds of the previous order should not be considered, either in whole or in part, when determining new grounds for detention. This is because when the Court strikes down an earlier order with a writ, it renders the entire order null and void, it clarified.

J&K Civil Service Regulation | Suspension Period Of Fully Exonerated Govt Servant Has To Be Treated As Time 'On Duty': Jammu & Kashmir High Court

Case Title: Wajid Ali Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 125

Clarifying the mandate of Article 108-B of the Jammu and Kashmir Civil Service Regulation, the Jammu and Kashmir and Ladakh High Court observed when a Government servant is completely cleared of any wrongdoing, they are entitled to receive full pay and allowances as if they had never been dismissed, removed, compulsorily retired, or suspended. In such cases, the period of absence from duty is treated as time spent on duty, the court held.

Summary Suit | Invoices/ Bills Are “Written Contracts” Within Order 37 CPC: Jammu & Kashmir High Court

Case Title: UT of J&K and others Vs Shabir Ahmad Dar and others

Citation: 2023 LiveLaw (JKL) 126

The Jammu and Kashmir and Ladakh High Court clarified that invoices/bills amount to “written contracts” within the contemplation of Order 37 of the CPC to initiate a summary suit.

FEMA | No Natural Justice Violation If Adjudicating Authority Unable To Furnish Few Documents Relied Upon To Initiate Action: Jammu & Kashmir High Court

Case Title: Mushtaq Ahmad Dar Vs Enforcement Directorate & Ors

Citation: 2023 LiveLaw (JKL) 127

The Jammu and Kashmir and Ladakh High Court emphasized that withholding documents from the aggrieved party does not violate natural justice principles if the opposing party is unable to provide them.

[Motor Accident] 'Substantial Rights' Involved Not Ground To Condone Unexplained Delay: Jammu & Kashmir High Court

Case Title: Suraj Chand Vs Bajaj Allianz Insurance Co. Ltd.

Citation : 2023 LiveLaw (JKL) 128

The Jammu and Kashmir and Ladakh High Court stressed that timely filing of appeals under the Motor Vehicles Act is crucial and should not be overlooked, even if the applicant believes their substantial rights are at stake.

The bench reiterated that the purpose of filing an appeal in such cases is to ensure a swift resolution, fair compensation, and discourage casual and negligent behaviour from opposing parties.

"The ground urged in the application that the delay in filing the appeal is required to be condoned as the applicant has substantial right involved in the matter cannot be accepted in view of the fact that in filing of an appeal under the provisions of Motor Vehicles Act against an award in law is aimed at or providing a cheap and speedy remedy and justice by way of compensation to a claimant."

Ex-Parte Decree | Remedies Under Order 9 Rule 13 & Section 96 CPC Are Concurrent, Can Be Resorted To Simultaneously: Jammu & Kashmir High Court

Case Title: Swarn Salaria Vs Baldev Raj Sharma & Ors.

Citation: 2023 LiveLaw (JKL) 129

The Jammu and Kashmir and Ladakh High Court reiterated that remedies under Order 9 Rule 13 CPC and Section 96 of the CPC, which allow for setting aside an ex parte judgment and filing an appeal, respectively, are concurrent and can be resorted to simultaneously.

Article 22(5) | Everyday Delay By Detaining Authority In Dealing With Detenu's Representation Has To Be Explained: Jammu & Kashmir High Court

Case Title: Atta Mohd Khan Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 130

While quashing a preventive detention order under J&K Public Safety Act, the Jammu & Kashmir High Court ruled that the Constitution casts legal obligation on the Government to consider the detenu's representation as early as possible.

Justice Sanjay Dhar observed,

"Everyday delay in dealing with the representation has to be explained and the explanation offered must indicate that there was no slackness or indifference. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal."

Every Member Of Police Force Required To Have Exceptional Integrity: Jammu & Kashmir High Court Upholds Constable's Termination For Fraud

Case Title: Farooq Ahmad Parray Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 131

Observing that every member of the police force is required to have exceptional integrity, the Jammu & Kashmir High Court upheld the termination of a Constable during probation period for submitting fake documents to secure additional points during the selection process.

Resorted To "Parallel Banking": Jammu & Kashmir High Upholds Peon's Dismissal For Misappropriation Of Funds

Case Title: Muneer Ahmad Paswal Vs Union of India.

Citation: 2023 LiveLaw (JKL) 132

Observing that every bank employee is under solemn duty to protect the interest of the bank and to discharge his duties with utmost integrity, the Jammu and Kashmir and Ladakh High Court upheld the dismissal of a peon from the Ellaquai Dehati Bank.

A bench comprising Justice Wasim Sadiq Nargal observed,

"The petitioner has betrayed the trust and confidence of the bank by resorting to a parallel banking by receipt of deposit from customers against fake receipts and repay such deposits against withdrawals/cheques without routing the deposits and payment to the bank and made requisite entries falsely in the passbooks of the customers and this charge against the petitioner stood proved by way of a detailed inquiry."

No Revision Against Rejection Of Plaint Under Order 7 Rule 11 CPC: Jammu & Kashmir High Court

Case Title: Mehvish Choudhary Vs J&K Bank & Anr.

Citation: 2023 LiveLaw (JKL) 133

The Jammu and Kashmir and Ladakh High Court ruled that the provision of Revision under Section 115 CPC cannot be used to challenge an order of Rejection of plaint under Order 7 Rule 11. This is because an order passed under Order 7 Rule 11 of the CPC is considered to be a decree by legal interpretation, making it appealable under Section 96 read with Order 41 of the CPC, it clarified.

Jammu & Kashmir High Court Refuses To Quash FIR In Asha Kit Scam, Says Can't Stifle Genuine Prosecution

Case Title: Suhas Laxman Phadke & anr Suprakash Kundu Deepak Kapoor Vs State of J&K

Citation: 2023 LiveLaw (JKL) 134

The Jammu & Kashmir and Ladakh High Court refused to quash the FIR registered by Vigilance Organization (Now ACB) in Asha Kit Scam, observing that the allegations in the FIR clearly disclose commission of cognizable offence and therefore, it would not be open to the Court to stifle a genuine prosecution.

The case related to purchase of medicines at exorbitant rates by the Director Health Services, Jammu from companies that had been permanently de-registered or blacklisted.

Every Water Source Is Government Property: Jammu & Kashmir High Court

Case Title: Mohammad Akram Dar & Ors Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 135

Observing that every water source in the State is and shall remain the property of the Government, the Jammu and Kashmir and Ladakh High Court dismissed a plea filed by the residents of the village Qasba Yar, District Shopian, seeking directions upon the administration to not to change, divert or take any water from Yari Kohal, a river flowing through their village.

Underscoring the goal of the State in ensuring that the ownership and control of the material resources of the community are distributed to subserve the common good as mandated under Article 39 of the Constitution, the Court said that the respondents have undertaken the exercise to ensure fair distribution of the natural resources and no individual or group of individuals can claim any right to exclusive use of natural resources.

Detaining Authority Should Communicate To Detenue Time Limit In Which He Can Make Representation Against Detention: Jammu & Kashmir High Court

Case Title: Tanveer Ahmed @ Jimmy Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 136

The Jammu and Kashmir and Ladakh High Court said that a detaining authority should communicate to the detenue, in the grounds of detention, the time limit in which he can make a representation to it i.e., till the approval of the detention order by the State Government.

Justice M A Chowdhary reasoned that the detenue's right to make a representation to the detaining authority is only available to him till approval of detention order by the Government and therefore the detaining authority should clearly communicate it to the detenu.

J&K Special Tribunal Can Refer Matters To High Court For Initiating Proceedings Under Contempt Of Courts Act: Jammu & Kashmir High Court

Case Title: Rasheed Ahmad Peerzada Vs J&K Special Tribunal.

Citation: 2023 LiveLaw (JKL) 137

The Jammu and Kashmir and Ladakh High Court held that J&K Special Tribunal is deemed to be a "court" subordinate to the High Court for the purposes of Section 10 of the Contempt of Courts Act and, therefore, shall be well within its powers to refer an appropriate case to the High Court for initiating appropriate proceedings against the violators of its orders or against those who commit its criminal contempt.

A bench comprising Justice Sanjeev Kumar remarked,

“…The J&K Special Tribunal is not a toothless body altogether and is possessed of sufficient powers to deal with the citizens who dare to commit its contempt. Though it is ideal as also to make the functioning of the Tribunal effective to make an amendment in the Act of 1988 to confer upon it specifically the power to punish for contempt in relation to itself or any member thereof, as has been done in various statutes”.

All ACR Entries Of Public Servant Must Be Communicated To Him With Reasonable Opportunity To Make Representation: Jammu & Kashmir High Court

Case Title: Ashok Kumar Sharma Vs Union of India.

Citation: 2023 LiveLaw (JKL) 138

The Jammu and Kashmir and Ladakh High Court ruled that all entries in Annual Confidential Reports (ACR) of an employee, including adverse entries, should be communicated to him with reasonable opportunity to make a representation against it.

Motor Accident Tribunal Possesses All Trappings Of Court Though Not Bound By Stringent Procedures Of CPC & Evidence Act: Jammu & Kashmir High Court

Case Title: United India Insurance Co. Ltd Vs Ashok Kumari and ors.

Citation: 2023 LiveLaw (JKL) 139

The Jammu and Kashmir and Ladakh High Court reiterated that a Tribunal constituted under the Motor Vehicle Act, 1988 with its ability to summon and examine witnesses, cross-examine them, and order the disclosure of documents, possesses all the trappings of a court though not bound by the stringent procedures outlined in the Civil Procedure Code and Evidence Act.

Cantonment Board Cannot Levy Bar License Fee Based On Restaurant's Annual Revenue: Jammu & Kashmir High Court

Case Title: M/S Highlander Bar and Restaurant Vs Union of India

Citation: 2023 LiveLaw (JKL) 140

The Jammu and Kashmir and Ladakh High Court ruled that a Cantonment board cannot levy trade license fee from a restaurant operating within its jurisdiction based on the restaurant's annual revenue. A bench comprising Justice Moksha Khajuria Kazmi observed,

"Claim of the respondents (Cantonment Board) of fixing the licence fee proportionate to the revenue earned by the petitioner (Restaurant) and on the basis of the fee in terms of notification, SO275 of the excise department, cannot be taken into account because of the fact that firstly, the respondents have no access to the revenue earned by the petitioner and secondly the licence fee charged by the respondents is with respect to the sanitation, hygiene and a licence to run the business etc., in the Cantonment Area of the respondents.

Kwar Hydroelectric Project | Minimal Judicial Interference In Contractual Matters Especially If Public Exchequer At Stake: Jammu & Kashmir High Court

Case Title: M/s Om Infra Ltd. New Delhi Vs Chenab Valley Power Projects P Ltd and ors.

Citation: 2023 LiveLaw (JKL) 141

The Jammu and Kashmir and Ladakh High Court reiterated that judicial interference in the matters concerning contractual matters must be minimal especially in case where there is propensity of negative impact on the public exchequer.

A bench of Justice Wasim Sadiq Nargal has observed,

"...Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer".

Trial Court Can't Discharge Accused By Conducting "Mini Trial" At Stage Of Framing Charges: Jammu & Kashmir High Court

Case Title: Central Bureau of Investigation, Anti-Corruption Bureau Vs Hazra Khan

Citation: 2023 LiveLaw (JKL) 142

The Jammu and Kashmir and Ladakh High Court reiterated that at the stage of framing charge against an accused, the Court can neither examine the material brought on record in detail nor examine the sufficiency of the material to establish the offence against the accused.

ITBP Force Rules | Army Court Not Recording Plea Of Guilt In Words Used By Accused Vitiates Proceedings: Jammu & Kashmir High Court

Case Title: Bharosi Lal Vs Union of India

Citation: 2023 LiveLaw (JKL) 143

Quashing a Summary Force Court (SFC) proceedings against a Constable of ITBP, the Jammu and Kashmir and Ladakh High Court said that since Army Rules are mandatory in nature, it is imperative that Army Court shall record the plea of guilt in the words used by the accused or as nearly as possible in the words used by the accused, as a violation of this mandatory requirement will vitiate the trial, conviction and penalty.

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.

Order 6 Rule 17 CPC Aims To Advance Substantial Justice Through Amendment Of Pleadings & Not To Impede It : Jammu And Kashmir High Court

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.

[Impleading Legal Heirs Of Deceased Defendant] Jammu & Kashmir High Court Differentiates Between Order 1 Rule 10 And Order XXII Rule 4 CPC

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.

Requirement To Refer The Claims To Dispute Adjudication Board (DAB) Is Mandatory: Jammu & Kashmir And Ladakh HC

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.