Jammu and Kashmir and Ladakh High Court Monthly Digest: November 2024

Chowdhary Piara Singh Vs Sat Pal 2024 LiveLaw (JKL) 296

White Globe Vs State of J&K 2024 LiveLaw (JKL) 297

Anu Bala Vs Rajesh Singh 2024 LiveLaw (JKL) 298

Mohammad Tajamul Masoodi Vs UT Of J&K 2024 LiveLaw (JKL) 299

Muhammad Shafi Wani VS Muhammad Sultan Bhat 2024 LiveLaw (JKL) 300

Zaka Chowdhary Vs UT Of J&K 2024 LiveLaw (JKL) 301

Syed Shaifta Arifeen Balkhi Vs J&K Public Service Commission & Ors 2024 LiveLaw (JKL) 302

Beero Devi Vs Kanchan Devi 2024 LiveLaw (JKL) 303

Mohd Latif Vs UT Of J&K 2024 LiveLaw (JKL) 304

Afrooza & Anr Vs Mohammad Aslam Dar 2024 LiveLaw (JKL) 305

UT Of J&K Vs Sajad Ahmad Shah & Anr 2024 LiveLaw (JKL) 306

Taxi Sumo Stand No 1 Vs UT Of J&K 2024 LiveLaw (JKL) 307

Balwant Singh Vs State of J&K 2024 LiveLaw (JKL) 308

State Of J&K Vs Abid Hussain 2024 LiveLaw (JKL) 309

Chander Prabha Vs UT Of J&K 2024 LiveLaw (JKL) 310

Presentation Convent Senior Secondary School Vs Satvinder Singh 2024 LiveLaw (JKL) 311

Joginder Singh Vs State & Ors 2024 LiveLaw (JKL) 312

M/s Mir Associates Construction Company Vs. Superintending Engineer Hydraulic Circle Doda and Anr 2024 LiveLaw (JKL) 313

M/s Pardeep Electricals and Building Pvt. Ltd. Vs. Union of India and Ors 2024 LiveLaw (JKL) 314

Mohd Azam Vs UT Of J&K 2024 LiveLaw (JKL) 315

Sardul Singh Vs Davinder Kour 2024 LiveLaw (JKL) 316

Dilawar Javid Bhat Vs UT Of J&K 2024 LiveLaw (JKL) 317

Abdul Majeed Lone Vs Union of India 2024 LiveLaw (JKL) 318

Kewal Krishan Vs Sham Lal 2024 LiveLaw (JKL) 319

Ajeet Kumar Vs UT Of J&K 2024 LiveLaw (JKL) 320

Shenaz Begum th. Abdul Mazeed Vs UT Of J&K 2024 LiveLaw (JKL) 321

UT Of J&K Vs Seema Koul & Anr 2024 LiveLaw (JKL) 322

Sanjeev Gupta vs UT Of J&K 2024 LiveLaw (JKL) 323

Judgments/Orders:

S.139 NI Act | Once Complainant Proves That Cheque Was Issued By Accused To Discharge Debt, Burden Shifts On Accused: J&K High Court

Case Title: Chowdhary Piara Singh Vs Sat Pal

Citation: 2024 LiveLaw (JKL) 296

Spotlighting the critical shift in evidentiary burden under Section 139 of the Negotiable Instruments Act, 1881 the Jammu and Kashmir and Ladakh High Court observed that once the complainant proves that a cheque was issued by the accused to discharge a debt, Section 139 mandates that the burden of proof shifts to the accused.

High Court Directs Jammu & Kashmir And Ladakh Authorities To Ensure Smooth Movement Of Ambulances For Public Health Emergencies

Case Title: White Globe Vs State of J&K

Citation: 2024 LiveLaw (JKL) 297

Aiming to streamline emergency medical transportation, the Jammu and Kashmir and Ladakh High Court mandated the Union Territories (UTs) of Jammu & Kashmir and Ladakh to develop a mechanism for ensuring hassle-free ambulance movement across both UTs.

While closing a Public Interest Litigation (PIL) a bench composed of Chief Justice Tashi Rabstan and Justice Puneet Gupta, underscored the critical need for rapid medical response systems in public health emergencies.

Complainant Or Dependents Must Be Issued Notice And Heard When Accused Seeks Bail Under SC/ST Act: J&K High Court

Case Title: Anu Bala Vs Rajesh Singh

Citation: 2024 LiveLaw (JKL) 298

Shedding light on the right of a victim under the SC/ST (Prevention of Atrocities) Act, 1989 the Jammu and Kashmir and Ladakh High Court asserted that a complainant or their dependent must be issued notice and heard when an accused seeks bail under the Act.

Citing provisions of the Act a bench of Justice M. A Chowdhary observed,

“On a harmonious reading of both the Sub-sections (3) and (5) of Section 15-A of the Act, it can be safely concluded that on filing of a bail application for being released in a case under the SC/ST (Prevention of Atrocities Act, the complainant or his dependent is to be issued a notice or is required to be heard at the time of consideration of bail plea”

Careful Consideration Of Grounds On Which Bail Has Been Granted To Detenue Is Critical In Preventive Detention Cases: J&K High Court

Case Title: Mohammad Tajamul Masoodi Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 299

The Jammu and Kashmir and Ladakh High Court emphasised that when bail is granted not on the merits of the case but due to procedural defaults under Section 167 of the Criminal Procedure Code or for urgent temporary purposes, such grounds might not favor the detainee.

A bench of Justice Wasim Sadiq Nargal ruled that in these cases, authorities may view such circumstances as further justification for preventive detention, provided other criteria are met.

For Offence U/S 504 IPC, Insult Must Provoke Complainant To Breach Public Peace Or Commit Offence: J&K High Court

Case Title: Muhammad Shafi Wani VS Muhammad Sultan Bhat

Citation: 2024 LiveLaw (JKL) 300

The Jammu & Kashmir High Court, in a recent judgment, quashed the complaint and proceedings against an accused, holding that the provisions under Sections 504 and 506 of the Indian Penal Code (IPC) were not substantiated by the complaint's allegations.

The court, exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, underscored the necessity of specific allegations to sustain a charge under Section 504, IPC, which addresses intentional insult aimed at provoking breach of peace.

Comparing Evaluation Methods Of J&K Public Service Commission With UPSC Lies Beyond Domain Of Judicial Review: High Court

Case Title: Zaka Chowdhary Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 301

The Jammu and Kashmir and Ladakh High Court emphasised that determining the effectiveness of evaluation methods used in competitive examinations, such as those by the Jammu and Kashmir Public Service Commission (JK PSC), compared to those by the Union Public Service Commission (UPSC), is a matter best left to experts.

J&K Reservation Rules | 4% Quota For Physically Challenged Persons Is Overall Horizontal Reservation, Not Compartmentalised: High Court

Case Title: Syed Shaifta Arifeen Balkhi Vs J&K Public Service Commission & Ors

Citation: 2024 LiveLaw (JKL) 302

Resolving a significant question regarding reservation rules for physically challenged persons the Jammu and Kashmir and Ladakh High Court clarified that the 4% reservation for physically challenged individuals, as outlined in the J&K Reservation Rules of 2005, constitutes an overall horizontal reservation, which applies broadly and does not operate as a compartmentalised category-specific quota.

CRPC | Magistrate Need Not Pass Detailed Order At Process Issuance Stage, Application Of Mind Is Crucial: J&K High Court

Case Title: Beero Devi Vs Kanchan Devi

Citation: 2024 LiveLaw (JKL) 303

The Jammu and Kashmir and Ladakh High Court held that while a formal or reasoned order is not mandatory when a Magistrate issues a process under Sections 190/204 of the Criminal Procedure Code, it is crucial that the Magistrate's order shows an indication of thoughtful consideration of the matter.

Power To Attest/Annul Mutation Is Quasi-Judicial, Natural Justice Must Be Adhered To While Invoking It: J&K High Court

Case Title: Mohd Latif Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 304

The Jammu and Kashmir and Ladakh High Court emphasized that the authority to attest or annul a mutation is quasi-judicial in nature. Such authority, vested in Revenue Officers, must be exercised in strict compliance with the J&K Land Revenue Act, ensuring an opportunity for the affected parties to be heard in line with natural justice principles, the court underscored.

Family Courts Must Strive For Settlement With Balanced Approach, Avoid Procrastination & Haste: J&K High Court

Case Title: Afrooza & Anr Vs Mohammad Aslam Dar

Citation: 2024 LiveLaw (JKL) 305

The Jammu and Kashmir and Ladakh High Court emphasized the role of family courts under the Family Courts Act, 1984, asserting that these courts must strive to mediate and help the parties reach a fair settlement.

While adjudicating upon a matter under the Act a bench of Justice Javed Iqbal Wani underscored that family courts are equipped to follow procedures they deem suitable to encourage amicable resolution, balancing swift action with thoughtful deliberation in family disputes. Sensitivity to the parties' circumstances is paramount, as per the Act, reflecting its core objective of fair and compassionate adjudication, he stressed.

J&K CSR | Absence From Duty Regardless Of Duration Does Not Mean Automatic Job Termination, Right To Hearing Is Essential: High Court

Case Title: UT Of J&K Vs Sajad Ahmad Shah & Anr

Citation: 2024 LiveLaw (JKL) 306

The High Court of Jammu and Kashmir and Ladakh underscored the right to a hearing for employees who are absent from duty, ruling that absence, irrespective of duration, does not automatically end employment.

A bench of Justices Sanjeev Kumar and Rajesh Sekhri cited Regulation 113 of J&K Civil Service Regulation (CSR) and observed,

“Absence from duty, howsoever long, cannot result in automatic cessation of employment. In all such cases, the person concerned has to be given an opportunity of hearing and depending on the nature of defence taken by him, further action should be taken”

Sites Intended To Function As Bus Or Taxi Stands Must Be Officially Notified By Govt After Consulting Local Authorities: J&K High Court

Case Title: Taxi Sumo Stand No 1 Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 307

The Jammu and Kashmir and Ladakh High Court reiterated that any site intended to function as a bus or taxi stand must be officially notified by the government or an authorized officer, who is required to consult local authorities beforehand.

A Division bench of Justices Sanjeev Kumar and Rajesh Sekhri underscored that if the proposed stand falls within the jurisdiction of a local body, such as a municipal council, the consent of that authority is mandatory before designating the location as a stand for contract carriages.

Statements In Newspapers Are Merely Hearsay & Cannot Serve As Proven Facts Unless Corroborated By Author: J&K High Court

Case Title: Balwant Singh Vs State of J&K

Citation: 2024 LiveLaw (JKL) 308

The Jammu and Kashmir and Ladakh High Court ruled that statements in newspapers are merely hearsay and cannot serve as proven facts unless corroborated by the author.

A bench of Justice Sanjay Dhar observed,

“The assertion made in a newspaper cannot be treated as proved facts reported therein. A statement of fact contained in a newspaper is merely hearsay and, in the absence of statement of the maker of the news report, the same cannot be relied upon as a proved fact”

HC Has Duty To Maintain Accurate Records Within Its Jurisdiction To Ensure Justice Prevails In Accordance With Law: J&K High Court

Case Title: State Of J&K Vs Abid Hussain

Citation: 2024 LiveLaw (JKL) 309

Reiterating that the High Court, as a court of record, derives its power to review judgments under Article 215 of the Constitution of India the Jammu and Kashmir and Ladakh High Court emphasized its obligation and duty to maintain accurate records within its jurisdiction, ensuring justice prevails in accordance with the law.

Alteration Of Settlement Records Impermissible Unless Registered Instrument Is Produced Before Relevant Officer Or Court: J&K High Court

Case Title: Chander Prabha Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 310

Reiterating that a transfer of immovable property cannot be deemed valid unless it is executed in writing and registered as per the provisions of the Registration Act the Jammu and Kashmir and Ladakh High Court emphasized that the alteration of settlement records is impermissible unless a registered instrument is produced before the relevant Revenue or Settlement Officer or Court.

Govt Recognised Private Schools May Fall Under Writ Jurisdiction, But Writ Of Mandamus Limited To Public Law Actions: J&K High Court

Case Title: Presentation Convent Senior Secondary School Vs Satvinder Singh

Citation: 2024 LiveLaw (JKL) 311

The Jammu & Kashmir and Ladakh High Court held that while unaided private educational institutions recognized by the government or affiliated to statutory boards may qualify as “public authorities” amenable to writ jurisdiction, a writ of mandamus can only be issued if the actions of such institutions fall within the domain of public law rather than private law.

J&K High Court Directs Govt To Create 334 Judicial Posts Within 60 Days, Emphasises Binding Nature Of Directive

Case Title: Joginder Singh Vs State & Ors

Citation: 2024 LiveLaw (JKL) 312

Asserting that recommendations by the High Court or its Chief Justice regarding the creation of posts are binding on the government the Jammu and Kashmir and Ladakh High Court has directed the Union Territory (UT) of J&K to create 334 posts in various judicial categories within 60 days, emphasizing the judiciary's autonomy and the government's obligation to comply.

Fresh Arbitrator Can Be Appointed By Court U/S 14 Of Arbitration Act If Proposed Arbitrator Is Ineligible U/S 12(5): J&K And Ladakh HC

Case Title: M/s Mir Associates Construction Company Vs. Superintending Engineer Hydraulic Circle Doda and Anr.

Citation: 2024 LiveLaw (JKL) 313

The Jammu & Kashmir and Ladakh High Court bench of Chief Justice Tashi Rabstan affirmed that when the arbitration clause is found to be foul with the amended section 12(5) of the Arbitration Act, the appointment of the arbitrator would be beyond the pale of the arbitration agreement. In such eventuality, the court can be approached under section 14 of the Arbitration Act for seeking substitution of the arbitrator.

Petition U/S 11 Of Arbitration Act Is Maintainable If Statutory Remedy Before Invoking Arbitration Clause Is Exhausted: J&K And Ladakh HC

Case Title: M/s Pardeep Electricals and Building Pvt. Ltd. Vs. Union of India and Ors.

Citation: 2024 LiveLaw (JKL) 314

The Jammu & Kashmir and Ladakh High Court bench of Chief Justice Tashi Rabstan has held that once the statutory remedy under contract is exhausted, arbitration clause can be invoked and appointment of the arbitrator can be sought under section 11 of the Arbitration Act.In this case, the respondent had to constitute Dispute resolution Board (DRB) within 30 days after execution of the contract for resolving any dispute arising between the parties but no DRB was constituted.

Preventive Detention Must Be Invoked With All Due Care And Circumspection: J&K High Court Quashes Detention Order

Case Title: Mohd Azam Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 315

Underscoring the sacrosanct nature of personal liberty, the High Court of Jammu & Kashmir and Ladakh quashed a preventive detention order, terming it as a product of non-application of mind and procedural lapses.

The Court emphasized that preventive detention, an extraordinary measure, requires meticulous care and caution as it involves the deprivation of an individual's most cherished rights.

Res Judicata Not Applicable To Domestic Violence Proceedings Where Circumstances Justify Filing Second Petition: J&K High Court

Case Title: Sardul Singh Vs Davinder Kour

Citation: 2024 LiveLaw (JKL) 316

The Jammu and Kashmir and Ladakh High Court has clarified that the principles of res judicata or analogous provisions of the Civil Procedure Code cannot restrict proceedings under the Domestic Violence (DV) Act if the aggrieved person provides valid reasons for filing a second petition after withdrawing the earlier one.

Powers Of Divisional Commissioners To Detain Under PITNDPS Remain Intact Even In Post-Reorganization Phase: J&K High Court Clarifies

Case Title: Dilawar Javid Bhat Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 317

Dismissing a petition challenging a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) the Jammu and Kashmir and Ladakh High Court clarified that the authority of the Divisional Commissioners to issue detention orders under PITNDPS remains intact despite the J&K Reorganization Act, 2019, unless specifically superseded by corresponding Central laws.

Right To Property Is A Human Right: J&K High Court Orders Rental Compensation To Landowner For 45 Yr Long Illegal Occupation

Case Title: Abdul Majeed Lone Vs Union of India

Citation: 2024 LiveLaw (JKL) 318

Reaffirming that the right to property is fundamental to human dignity and cannot be compromised without legal process and fair compensation, the Jammu and Kashmir and Ladakh High Court directed the Union of India to pay rental compensation to Abdul Majeed Lone, a Tangdhar landowner whose property has been under military occupation since 1978 without due process.

Errors Which Are Not Self-Evident, Have To Be Detected Cannot Justify Invoking Power Of Review Under O.47 R.1 CPC: J&K High Court

Case Title: Kewal Krishan Vs Sham Lal

Citation: 2024 LiveLaw (JKL) 319

Defining the boundaries of judicial review the Jammu and Kashmir and Ladakh High Court has emphasised that errors not evident on the face of the record cannot justify review under Order XLVII Rule 1 of the Civil Procedure Code (CPC).

A bench of Justice Vinod Chatterji Koul held, “An error that is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review under Order XLVII Rule 1 CPC”

Approaching HC For Bail U/S 483 BNSS Without Approaching Trial Court Unnecessarily Burdens HC: J&K High Court

Case Title: Ajeet Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 320

Criticising the growing trend of directly approaching the High Court for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 the Jammu and Kashmir and Ladakh High Court observed that bypassing the trial courts in such matters not only burdens the High Court but also disregards the legal protocol, where such petitions should typically be first addressed by the courts below.

"Suffering From Schizophrenia, No Purpose In Continued Custody": J&K High Court Grants Bail To Woman Accused Of Killing 3-Month Old Son

Case Title: Shenaz Begum th. Abdul Mazeed Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 321

The Jammu and Kashmir and Ladakh High Court granted bail to one Shenaz Begum, accused of murdering her three-month-old son in 2021 observing that the applicant's schizophrenia diagnosis and the absence of a plausible motive rendered her continued judicial custody purposeless.

Kashmiri Pandit Woman Continues To Retain Migrant Status Despite Marriage To Non-Migrant: J&K High Court

Case Title: UT Of J&K Vs Seema Koul & Anr

Citation: 2024 LiveLaw (JKL) 322

The Jammu and Kashmir and Ladakh High Court has ruled that a Kashmiri Pandit woman does not lose her "migrant status" upon marrying a non-migrant.

A bench of Justices Atul Sreedharan and Mohammad Yousuf Wani clarified, “.. to hold that the woman would lose her status as a migrant only because she, out of the natural urge of forming a family, had to marry a non-migrant on account of existing circumstances, would be grossly discriminatory and militates against the very concept of justice. This discrimination becomes even more brazen where a male migrant continues to remain a migrant notwithstanding the fact that he has married a non-migrant”

Unregistered Agreement Insufficient To Transfer Leasehold Rights, Housing Board's Procedure Paramount: J&K High Court

Case Title: Sanjeev Gupta vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 323

The Jammu and Kashmir and Ladakh High Court reaffirmed that an unregistered agreement to sell is inadequate to transfer leasehold rights, emphasizing the exclusive procedure of the J&K Housing Board for such transfers.