Jammu & Kashmir And Ladakh High Court Monthly Digest: October 2024

Hallmark v. Jammu & Kashmir GST Department & Anr 2024 LiveLaw (JKL) 272

Sabahat Sanna Vs Dr Shabir Ahmad 2024 LiveLaw (JKL) 273

Sudhir Power Limited v. Union Territory of Jammu and Kashmir & Ors 2024 LiveLaw (JKL) 274

Pawan Kumar Vs UT Of J&K 2024 LiveLaw (JKL) 275

Syed Tassadque Hussain Vs Union Of India 2024 LiveLaw (JKL) 276

Oriental Insurance Company Vs M/S Shalimar Wine Shop 2024 LiveLaw (JKL) 277

Suraj Prakash Vs State of J&K 2024 LiveLaw (JKL) 278

UT Of J&K Vs Mudasir Farooq Malik 2024 LiveLaw (JKL) 279

Mohammad Iqbal Mir and others Vs State of J&K and others 2024 LiveLaw (JKL) 280

State Of J&K Vs Rakesh Kumar 2024 LiveLaw (JKL) 281

Dr Sumit Sabarwal Vs Dr Om Prakash Gupta 2024 LiveLaw (JKL) 282

United India Insurance Company Vs Taja Begum 2024 LiveLaw (JKL) 283

Shafqat Wani Vs Universal Sompo General Insurance Co. Ltd 2024 LiveLaw (JKL) 284

J&K High Court Bar Association, Srinagar, through, Arshad Andrabi Vs State Of J&K 2024 LiveLaw (JKL) 285

M/S Multi Trading Agencies v. UT of J&K (and connected matters) 2024 LiveLaw (JKL) 286

Pr. Commissioner of Income Tax V/s J & K Power Development Corporation Limited 2024 LiveLaw (JKL) 287

Shivali Sharma Vs Army Public School Through Its President AWES 2024 LiveLaw (JKL) 288

United Insurance Co Ltd Vs Fatima Begum 2024 LiveLaw (JKL) 289

Mehmood Ur Rayaz Bhat Vs UT Of J&K 2024 LiveLaw (JKL) 290

J&K State Forest Corporation Vs Sher Singh 2024 LiveLaw (JKL) 291

Ram Prasad Vs New India Assurance Co Ltd 2024 LiveLaw (JKL) 292

Kuldeep Raj Dubey Vs Puneet Sharma 2024 LiveLaw (JKL) 293

Imran Khan Vs UT Of J&K 2024 LiveLaw (JKL) 294

Roshan Kumar Vs UT Of J&K 2024 LiveLaw (JKL) 295

Judgments/Orders:

Limitation For Refund Of GST Is Determined From Date Of Original Application, Not From Date Of Follow-Up Application: J&K HC Quashes Deficiency Memo

Case title: Hallmark v. Jammu & Kashmir GST Department & Anr.

Citation: 2024 LiveLaw (JKL) 272

The Jammu and Kashmir and Ladakh High Court held that the time limit for refund of GST is to be determined from the date the original application is filed by an assessee, and not from the date of follow-up application.

Temporary Residence Elsewhere Doesn't Alter Jurisdiction In Guardianship Petitions, It Depends On Ordinary Residence: J&K High Court

Case Title: Sabahat Sanna Vs Dr Shabir Ahmad

Citation: 2024 LiveLaw (JKL) 273

The Jammu & Kashmir and Ladakh High Court reaffirmed that it is the ordinary place of residence of the minor which determines the jurisdiction of the Court in guardianship matters under Section 9 of the Guardians and Wards Act, 1890 and temporary residence elsewhere at the time of filing the application does not alter this jurisdiction.

HC Upholds J&K Govt's Decision To Withdraw Budgetary Support Scheme 2018 For Reimbursement Of IGST To Manufacturing Units

Case title: Sudhir Power Limited v. Union Territory of Jammu and Kashmir & Ors.

Citation: 2024 LiveLaw (JKL) 274

The Jammu and Kashmir and Ladakh High Court upheld the UT government's decision to withdraw the 'Budgetary Support Scheme', notified in the year 2018 for providing budgetary support to manufacturing units in the UT, by reimbursement of Integrated Goods and Service Tax.

A division bench of Justices Sanjeev Kumar and Rajesh Sekhri observed that the Scheme did not create any legitimate expectation in the units nor did it attract promissory estoppel on the government.

Though DNA Report Can Be Considered While Adjudicating Bail, Prosecution Can Contest Its Accuracy In Trial: J&K High Court

Case Title: Pawan Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 275

The Jammu and Kashmir and Ladakh High Court emphasized that while the prosecution and complainant retain the right to contest the accuracy of the DNA analysis during the trial, such a report can be considered in the context of a bail petition before the trial fully unfolds.

J&K High Court Dismisses PIL Challenging Public Safety Act as Not Maintainable, Cites Ongoing Adjudication On Similar Issue

Case Title: Syed Tassadque Hussain Vs Union Of India

Citation: 2024 LiveLaw (JKL) 276

The Jammu and Kashmir and Ladakh High Court, comprising Chief Justice Tashi Rabstan and Justice M A Chowdhary dismissed a Public Interest Litigation (PIL) challenging the validity of the Jammu and Kashmir Public Safety Act (PSA), 1978. The court declared the PIL non-maintainable, citing that the issue of detention of citizens under the PSA was already under judicial consideration, making this litigation a parallel and redundant proceeding.

Insurance Company Must Pay Full Insured Amount, Relief From Government Irrelevant: J&K High Court

Case Title: Oriental Insurance Company Vs M/S Shalimar Wine Shop

Citation: 2024 LiveLaw (JKL) 277

The Jammu and Kashmir and Ladakh High Court held that an insurance company cannot reduce the payout to a claimant based on ex gratia relief received from the government.

Dismissing a Civil 1st Miscellaneous Appeal filed by an Insurance company against an award a bench of Chief Justice Tashi Rabstan and Justice M A Chowdhary emphasized,

"the Insurance Company is bound to pay the claim against the sum insured. It is not the business of the Insurance Company to see whether the person suffering damages has been paid some sort of relief from other sources or not."

Employee Of State Road Transport Corporation Entitled To Pay Revision And Benefits Of 5th And 6th Pay Commissions: Jammu & Kashmir High Court

Case Title: Suraj Prakash Vs State of J&K

Citation: 2024 LiveLaw (JKL) 278

Jammu and Kashmir High Court ruled in favor of the petitioner, recognizing his entitlement to the pay revisions under the 5th and 6th Pay Commissions, despite his superannuation.

The court held that since the petitioner had been treated as a government employee for pension purposes, he was also entitled to the pay revisions granted under the relevant Statutory Rules and Orders (SROs).

O.37 R.3 CPC | Courts Can Allow Conditional Leave To Defend Summary Suits, With Terms Tailored To Specific Facts Of Each Case: J&K High Court

Case Title: UT Of J&K Vs Mudasir Farooq Malik

Citation: 2024 LiveLaw (JKL) 279

The Jammu and Kashmir and Ladakh High Court reiterated that under Order 37 Rule III of the Civil Procedure Code (CPC), courts retain the discretion to impose conditions on a defendant seeking leave to defend a summary suit.

A bench of Justice Javed Iqbal Wani accentuated that this discretion is exercised based on the specific facts and circumstances of each case, and upon compliance with such terms, the defendant earns the right to defend the suit.

J&K Land Revenue Act | Divisional & Financial Commissioners Hold Concurrent Revision Powers U/S 15 Provided Fair Hearing Is Granted To Parties: HC

Case Title: Mohammad Iqbal Mir and others Vs State of J&K and others

Citation: 2024 LiveLaw (JKL) 280

The Jammu and Kashmir and Ladakh High Court set aside orders passed by the Divisional Commissioner and the Financial Commissioner in a land dispute case, emphasizing the necessity of granting a fair opportunity of hearing to parties affected by revisionary orders under the J&K Land Revenue Act, 1996.

Heated Exchange Between Couple/Family Members Over Non-Preparedness Of Food Not Sufficient To Prove Abetment To Suicide: J&K High Court

Case Title: State Of J&K Vs Rakesh Kumar

Citation: 2024 LiveLaw (JKL) 281

The Jammu and Kashmir and Ladakh High Court held that a heated exchange between family members over domestic matters such as the preparation of food cannot be construed as abetment to suicide under Section 306 of the Ranbir Penal Code (RPC).

Is Letters Patent Appeal Maintainable Against Order Of Single-Judge In Criminal Jurisdiction?: J&K High Court Refers To Larger Bench

Case Title: Dr Sumit Sabarwal Vs Dr Om Prakash Gupta

Citation: 2024 LiveLaw (JKL) 282

To determine whether a Letters Patent Appeal (LPA) under Clause 12 of the Letters Patent applicable to Jammu & Kashmir and Ladakh is maintainable against an order or judgment passed by a Single Judge in criminal jurisdiction, the Division Bench of the Jammu & Kashmir and Ladakh High Court referred the matter to the Chief Justice for further reference to a Larger Bench.

Vehicle's Proximity To Accident, Not Its Motion Is Key In Determining Liability Under Motor Vehicles Act: J&K High Court

Case Title: United India Insurance Company Vs Taja Begum

Citation: 2024 LiveLaw (JKL) 283

The Jammu and Kashmir and Ladakh High Court ruled that the determination of whether an accident has arisen from the use of a motor vehicle depends on whether the accident was reasonably proximate to the vehicle's use, irrespective of whether the vehicle was in motion.

Motor Vehicles Act | Cover Note Issued U/S 145 Constitutes Valid 'Certificate Of Insurance' To Establish Insurance Liability: J&K High Court

Case Title: Shafqat Wani Vs Universal Sompo General Insurance Co. Ltd.

Citation: 2024 LiveLaw (JKL) 284

The Jammu and Kashmir and Ladakh High Court clarified that a Cover Note issued under Section 145 of the Motor Vehicles Act, 1988 (MVA), constitutes a valid 'Certificate of Insurance', to establish the insurance liability.

While overturning a Tribunal's decision and holding the insurer liable to pay compensation for an accident that occurred within the policy's coverage period a bench of Justice M. A Chowdhary explained that a 'Certificate of Insurance' includes a Cover Note meeting the prescribed requirements and if multiple certificates are issued for a policy or a copy of a certificate is provided, all such certificates or copies are collectively considered part of the 'Certificate of Insurance.'

High Court Dismisses Plea Challenging Amendment to Public Safety Act By 'J&K Bar Association, Srinagar' Due To Lack of Locus Standi

Case Title: J&K High Court Bar Association, Srinagar, through, Arshad Andrabi Vs State Of J&K

Citation: 2024 LiveLaw (JKL) 285

The Jammu and Kashmir and Ladakh High Court, comprising Chief Justice Tashi Rabstan and Justice M.A. Chowdhary dismissed a Public Interest Litigation (PIL) filed by the J&K High Court Bar Association, Srinagar. The PIL, which challenged the validity of the 2018 Amendment to the Jammu & Kashmir Public Safety Act (PSA), was dismissed on the grounds of maintainability and lack of locus standi.

S.107(4) CGST Act | Appellate Authority Can't Condone Delay Beyond 30 Days In Filing Appeal But HC May Consider Exceptional Cases: J&K High Court

Case Title: M/S Multi Trading Agencies v. UT of J&K (and connected matters)

Citation: 2024 LiveLaw (JKL) 286

The Jammu and Kashmir and Ladakh High Court held that the Appellate Authority under the Central Goods and Services Tax Act/ J&K Goods and Services Tax Act cannot condone the delay in filing appeal beyond 30 days.

Notice U/S 271(1)(c) Of IT Act Must Specify Whether Penalty Is Against 'Concealment' Of Income Or Furnishing 'Incorrect' Income: J&K High Court

Case Title: Pr. Commissioner of Income Tax V/s J & K Power Development Corporation Limited

Citation: 2024 LiveLaw (JKL) 287

The Jammu and Kashmir and Ladakh High Court made it clear that notice to an assessee proposing imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961 has to clearly specify whether assessee is accused of 'concealing' his income or furnishing 'incorrect' income particulars.

Army Public Schools Are Not 'State' Under Article 12, Employment Disputes Not Maintainable Under Writ Jurisdiction: J&K High Court

Case Title: Shivali Sharma Vs Army Public School Through Its President AWES

Citation: 2024 LiveLaw (JKL) 288

The Jammu & Kashmir and Ladakh High Court ruled that Army Public Schools (APS) and their governing body, the Army Welfare Education Society (AWES), do not qualify as the "State" under Article 12 of the Indian Constitution.

Consequently, a bench of Justice Wasim Sadiq Nargal clarified that employment disputes concerning APS teachers, governed by private contractual terms, cannot be challenged through writ jurisdiction under Article 226.

MV Act | Narrow Or Technical Interpretation Of “Income” Defeats Objective Of Providing Just Compensation To Victims, Dependents: J&K High Court

Case Title: United Insurance Co Ltd Vs Fatima Begum

Citation: 2024 LiveLaw (JKL) 289

Underscoring the importance of a balanced approach in determining compensation under the Motor Vehicles Act, the Jammu and Kashmir and Ladakh High Court emphasized that the term “income” cannot be given a narrow or technical meaning, as such an approach defeats the objective of providing just compensation to victims and their dependents.

Denial Of Bail Must Be A Judicious Exception, Personal Liberty Under Article 21 'Too Precious' To Be Curtailed Casually: J&K High Court

Case Title: Mehmood Ur Rayaz Bhat Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 290

Reaffirming the fundamental value of personal liberty enshrined under Article 21 of the Constitution, the Jammu and Kashmir and Ladakh High Court granted absolute anticipatory bail to one accused in a case involving sexual offenses and harassment.

While making the interim pre arrest bail absolute in nature Justice Mohammad Yousuf Wani emphasized that the denial of bail is not a matter of routine and must only be exercised judiciously, with sensitivity to both individual and societal interests.

Objections To Pecuniary Jurisdiction Must Be Raised Early In Trial, Else Would Be Barred In Appeal Unless Failure of Justice Occurs: J&K High Court

Case Title: J&K State Forest Corporation Vs Sher Singh

Citation: 2024 LiveLaw (JKL) 291

The Jammu and Kashmir and Ladakh High Court clarified that objections concerning the pecuniary limits of a court's jurisdiction must be raised at the earliest opportunity in the trial court. If not, they cannot be entertained by appellate or revisional courts, unless the oversight caused a failure of justice, as prescribed under Section 21 of the Civil Procedure Code (CPC), the court elucidated.

Failure To Apply Statutes And Binding Precedents Constitutes Error Reviewable Under Order 47 Rule 1 CPC: J&K High Court

Case Title: Ram Prasad Vs New India Assurance Co Ltd

Citation: 2024 LiveLaw (JKL) 292

The Jammu and Kashmir and Ladakh High Court emphasised that the failure to apply statutes and binding precedents constitutes a palpable legal flaw warranting review under Order 47 Rule 1 of the Code of Civil Procedure, 1908.

A bench of Justice M.A Chowdhary clarified that courts must adhere to applicable statutes and precedents, especially those laid down by the Supreme Court, to ensure judgments are free from errors.

"Attempt To Wreak Vengeance, Divert From Core Issues": J&K High Court Quashes Defamation Complaint

Case Title: Kuldeep Raj Dubey Vs Puneet Sharma

Citation: 2024 LiveLaw (JKL) 293

Quashing a defamation complaint, citing the improper use of judicial processes for personal vendetta the Jammu and Kashmir and Ladakh High Court highlighted that judicial mechanisms cannot be exploited to satisfy personal egos or to pursue vengeance.

Arbitrarily Labelling Individuals As Habitual Offenders Not Only Taints Them But Also Impairs Their Fundamental Rights: J&K High Court

Case Title: Imran Khan Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 294

Quashing the police action of branding a Jammu resident as a history-sheeter and entering his name in the Surveillance Register the Jammu and Kashmir and Ladakh High Court underscored that the arbitrary labeling of individuals as habitual offenders without due process not only taints their image but also impairs their fundamental rights under Article 21 of the Constitution.

Unexplained & Unsatisfactory Delay In Executing Detention Order Raises Doubts About Detaining Authority's Subjective Satisfaction: J&K High Court

Case Title: Roshan Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 295

The Jammu and Kashmir & Ladakh High Court quashed a preventive detention order observing that the unexplained and unsatisfactory delay in executing the detention order raised doubts about the genuineness of the detaining authority's subjective satisfaction.