Jammu & Kashmir And Ladakh High Court Monthly Digest: September 2023

Nominal Index [Citations 238-255]:

Happy Singh vs. Union of India 2023 LiveLaw (JKL) 238

SHAH MASOOD AHMAD AND ANR vs. SHAH SHABIR AHMAD 2023 LiveLaw (JKL) 239

BILLO KASANA & OTHERS Vs STATE OF J&K & ORS 2023 LiveLaw (JKL) 240

Noor Ahmad Shah vs. Union of India and Ors 2023 LiveLaw (JKL) 241

MOLVI AB. RASHID SHEIKH Vs U T OF J&K & Anr. ..Mushtaq Ahmad Bhat @ Veeri V/s Union Territory of J&K & Ors 2023 LiveLaw (JKL) 242

Brij Bhushan Sharma vs. State Of J&K 2023 LiveLaw (JKL) 243

Mst. Raja Vs.Mst. Fazi and Ors 2023 LiveLaw (JKL) 244

Sajad Ahmad Mir V/s Mukhtair ul Qadir 2023 LiveLaw (JKL) 245

Mohammad Rafiq Mir Vs Mohamad Bhat 2023 LiveLaw (JKL) 246

Intizamiya Committee Dargah and Anr v. Union Territory of J&K and Ors 2023 LiveLaw (JKL) 247

Nikhil Sharma Vs State of J&K and others 2023 LiveLaw (JKL) 248

Abdul Rashid Dar vs. UT Of J&K 2023 LiveLaw (JKL) 249

Brij Mohan Sawney Vs Sanjeev Kumar Gupta 2023 LiveLaw (JKL) 250

Dilshad Sheikh & Ors vs Sabha Sheikh 2023 LiveLaw (JKL) 251

Bashir-Ud-Din Vs UT Of J&K 2023 LiveLaw (JKL) 252

Hotel Ashai Srinagar & Ors. Vs State of J&K 2023 LiveLaw (JKL) 253

Ama Teli V/s Manzoor Ahmad Bhat and others 2023 LiveLaw (JKL) 254

Sheikh Abdul Majeed Vs UT of J&K 2023 LiveLaw (JKL) 255

Judgments/Orders:

'Drug Abuse Taking A Toll On Lives Globally': J&K High Court Upholds Preventive Detention Of Alleged Drug Trafficker

Case Title: Happy Singh vs. Union of India

Citation: 2023 LiveLaw (JKL) 238

The Jammu and Kashmir and Ladakh High Court observed that the ongoing impact of illicit drug trafficking and drug abuse has taken a substantial toll on countless lives and robbed many individuals of their productive years worldwide.

Justice Wasim Sadiq Nargal thus upheld the preventive detention of an alleged drug trafficker hailing from Punjab.

“Drug trafficking along with drug abuse, especially by younger generation has continued its significant toll on valuable human lives and productive years of many persons around the globe. With the growth and development of world economy, drug traffickers are also seamlessly trafficking various type of drugs from one corner to other ensuring availability of contrabands for vulnerable segment of society who fall into trap of drug peddlers and traffickers”.

Courts To Avoid Pedantic Approach In Application For Supplementing Grounds For Delay Condonation, Unless They Determine Parties' Rights: J&K High Court

Case Title: SHAH MASOOD AHMAD AND ANR vs. SHAH SHABIR AHMAD

Citation: 2023 LiveLaw (JKL) 239

The Jammu and Kashmir High Court observed that a pedantic approach should not hinder the incorporation of additional grounds in applications seeking condonation of delay.

Justice Puneet Gupta emphasised that the court should refrain from overly strict or pedantic scrutiny when parties seek to introduce supplementary pleadings in applications that do not ultimately determine the parties' rights in the ongoing suit.

Migrant's Property Cannot Be Alienated Without Revenue Minister's Permission, Not Even By Court Decree: Jammu & Kashmir High Court

Case Title: BILLO KASANA & OTHERS Vs STATE OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 240

The Jammu and Kashmir and Ladakh High Court made it clear that the J&K Migrant Immovable Property 1997 prohibits alienation of immovable property of a migrant not only by act of parties but also by a decree or order of a Court or a revenue officer, without previous permission of Revenue and Relief Minister.

"A perusal of Section 4 of the Act of 1997 would reveal that the District Magistrate becomes custodia legis of any property belonging to a migrant and the same cannot be alienated without the permission of Revenue and Relief Minister and any alienation in violation of the same or without such permission is null and void", Justice Sanjay Dhar observed.

Only National Freedom Fighters Eligible For Benefits Under Swantantrata Sainik Samman Pension Scheme, Not Militancy Fighters: J&K High Court

Case Title: Noor Ahmad Shah vs. Union of India and Ors.

Citation: 2023 LiveLaw (JKL) 241

The Jammu and Kashmir and Ladakh High Court held that individuals who fought against militancy do not meet the criteria for pension under the Swantantrata Sainik Samman Pension Scheme.

Justice Sanjay Dhar explained that the said pension scheme is particularly designed to honour those who actively participated in the National Freedom Struggle as prescribed in the SSA Pension 1980.

Jammu & Kashmir High Court Quashes Detention Orders Of Prominent Clerics Moulana Abdul Rashid Dawoodi, Mushtaq Veeri

Case Title: MOLVI AB. RASHID SHEIKH Vs U T OF J&K &anr. ..Mushtaq Ahmad Bhat @ Veeri V/s Union Territory of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 242

The Jammu & Kashmir High Court quashed the detention orders of two prominent clerics, Moulana Abdul Rashid Dawoodi and Mushtaq Ahmed Veeri, who were detained under the Public Safety Act (PSA) last year.

“Surprisingly, when no FIR is shown to have been registered against the petitioner, then how come 05 leaves of FIR etc. have been provided to him. This exhibits total non-application of mind and overzealousness on the part of the detaining authority, which casts serious doubt about the authenticity of the receipt”, the bench remarked.

Framing Of Charges | High Court Can't Scrutinise Evidence To Differ From Trial Court's Opinion: Jammu & Kashmir High Court

Case Title: Brij Bhushan Sharma vs. State Of J&K

Citation: 2023 LiveLaw (JKL) 243

The Jammu and Kashmir and Ladakh High Court ruled that a High Court's scrutiny of the evidence and material collected by the prosecution in support of the charge, in exercise of its inherent jurisdiction under Section 561-A of the J&K Code of Criminal Procedure is not any higher than that of the court that framed the charge.

“Sifting of evidence to come to a conclusion contrary to the one arrived at by the trial Court in framing charge is not permissible”, Justices Sanjeev Kumar and Rajesh Sekhri observed.

CPC Intended To Facilitate Justice & Not Penalise Individuals, Procedural Errors Can't Defeat A Rightful Relief: Jammu & Kashmir High Court

Case Title: Mst. Raja Vs.Mst. Fazi and Ors.

Citation: 2023 LiveLaw (JKL) 244

The Jammu and Kashmir High Court emphasised that the Code of Civil Procedure is intended to facilitate justice, not to penalize individuals and courts typically do not deny rightful relief due to procedural errors or mistakes, whether they result from negligence, inadvertence, or rule violations.

Justice Javed Iqbal Wani thus set aside an order passed by the Court of Special Mobile Magistrate, Anantnag invoking its supervisory jurisdiction under Article 227 of the Constitution.

Issuance Of Process Must Reflect Application Of Mind, Can't Simply Fill Blank Spaces In Printed Proforma: Jammu & Kashmir High Court

Case Title: Sajad Ahmad Mir V/s Mukhtair ul Qadir

Citation: 2023 LiveLaw (JKL) 245

The Jammu and Kashmir and Ladakh High Court deprecated the practice of issuance of process on printed proforma by filling blank spaces.

Bench of Justice Rajnesh Oswal reasoned that issuance of process is a serious matter and it must reflect the application of mind on the part of the concerned Magistrate though it is not incumbent upon the Magistrate to explicitly state the reasons for issuance of process.

Also Read - J&K Agrarian Reforms Act | Landlord-Tenant Relationship To Be Established Between Parties To Avail Ownership Rights U/S 4, 8 : High Court

CPC | Not Necessary To Assess Legality Of Underlying Circumstances While Allowing Amendment To Plaints: J&K High Court

Case Title: Mohammad Rafiq Mir Vs Mohamad Bhat

Citation: 2023 LiveLaw (JKL) 246

The Jammu and Kashmir and Ladakh High Court emphasised that when permitting amendments of plants under Order VI Rule 17 CPC, courts are not obligated to delve into the legality or illegality of the circumstances that prompted the amendment.

Also Read - Jurisdiction U/Art 226 Not Confined To Administrative, Executive Actions Of State, Also Extends To Promissory Estoppel: J&K High Court

Justice Puneet Gupta added that the order sought to be included in the amended pleadings was a matter for a forum other than the civil court.

Govt Notifications That Create, Extinguish Rights Should Be Published In Govt Gazette Unlike Those Declaring Existing Facts: J&K High Court

Case Title: Intizamiya Committee Dargah and Anr v. Union Territory of J&K and Ors.

Citation: 2023 LiveLaw (JKL) 247

Also Read - History Sheets Only To Be Opened If Authority Reasonably Convinced Of Habitual Offending: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court held that while government notifications that create or extinguish rights and liabilities require mandatory publication in the Government Gazette, those that inform the public about existing facts can be deemed as directory in nature.

A bench of Justice Javed Iqbal Wani was hearing a petition challenging the takeover of a religious site Ziyarat Sharief Syed Khazir Sahab by the Jammu and Kashmir Wakaf Board.

No Father Would Falsely Accuse An Innocent Person Of Committing Rape On Mentally Unsound Minor Daughter: Jammu & Kashmir High Court

Case Title: Nikhil Sharma Vs State of J&K and others

Citation: 2023 LiveLaw (JKL) 248

The Jammu and Kashmir and Ladakh High Court upheld a rape conviction on the testimony of the father of the mentally unsound daughter observing that no father would falsely implicate an innocent person for such an offence.

A bench of Justices Rajnesh Oswal and Moksha Khajuria Kazmi was hearing an appeal against the judgment passed by the Additional Sessions Judge which convicted the appellant for the commission of offences under Sections 363 and 376 RPC.

Court Not Barred From Assessing Detention Orders If Unjust Detention Suspected: Jammu & Kashmir High Court

Case Title: Abdul Rashid Dar vs. UT Of J&K

Citation: 2023 LiveLaw (JKL) 249

The Jammu and Kashmir and Ladakh High Court quashed a detention order observing that while the Court does not engage in evaluating the detention order as in an appellate process, it does not imply that the Court is entirely precluded from scrutinizing the detention order.

Justice Puneet Gupta added that if it finds that the order is merely a facade designed to unjustly detain an individual, the Court is duty-bound to intervene, as safeguarding the liberty of the detainee is of paramount importance.

J&K Arbitration And Conciliation Act | Filing Application U/S 5 Not Bar To Referral For Arbitration U/S 8(1): High Court

Case Title: Brij Mohan Sawney Vs Sanjeev Kumar Gupta

Citation: 2023 LiveLaw (JKL) 250

The Jammu and Kashmir and Ladakh High Court clarified that filing of the application under Section 5 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 cannot be construed as a submission of statement of the substance of the dispute within the meaning of Section 8(1) of the Act to create a legal bar in referring the matter to an arbitrator

FIR Can Be Registered On Complaint Received Via WhatsApp: Jammu & Kashmir High Court

Case Title: Dilshad Sheikh & Ors vs Sabha Sheikh

Citation: 2023 LiveLaw (JKL) 251

The Jammu and Kashmir and Ladakh High Court r held that registration of complaints via WhatsApp, coupled with acknowledgement by relevant authorities, is substantial compliance of Sections 154(1) and 154(3) of CrPC- provisions pertaining to registration of FIRs.

History Sheets Only To Be Opened If Authority Reasonably Convinced Of Habitual Offending: Jammu & Kashmir High Court

Case Title: Bashir-Ud-Din Vs UT Of J&K

Citation: 2023 LiveLaw (JKL) 252

The Jammu and Kashmir and Ladakh High Court ruled that law enforcement shall strictly adhere to established parameters in Police Rules while opening or retaining history sheets. It added that a history sheet can be opened only on the subjective satisfaction of the authority that the person is a habitual offender.

Justice M A Chowdhary added that authorities must exercise this discretion based on reason and justice, not personal opinion or whims and their actions should adhere to the law and established procedures, avoiding arbitrary, vague, or fanciful decisions.

Jurisdiction U/Art 226 Not Confined To Administrative, Executive Actions Of State, Also Extends To Promissory Estoppel: J&K High Court

Case Title: Hotel Ashai Srinagar & Ors. Vs State of J&K

Citation: 2023 LiveLaw (JKL) 253

The Jammu and Kashmir and Ladakh High Court observed that the High Court's authority under Article 226 of the Constitution is not confined to scrutinizing the administrative and executive decisions of the government but also applies to the applicability of the doctrine of promissory estoppel.

Justice Wasim Sadiq Nargal observed that jurisdiction under Article 226 can be invoked to ensure that the government abides by its promises.

“The jurisdiction of the High Court while exercising the powers under Article 226 of the Constitution of India is not restricted only to the review of the administrative actions and executive decisions of the State but also extends to the applicability of the "doctrine of promissory estoppels" of which the whole object is to see that the Government sticks to its promise and abides by it”.

J&K Agrarian Reforms Act | Landlord-Tenant Relationship To Be Established Between Parties To Avail Ownership Rights U/S 4, 8 : High Court

Case Title: Ama Teli V/s Manzoor Ahmad Bhat and others

Citation: 2023 LiveLaw (JKL) 254

The Jammu and Kashmir and Ladakh High Court ruled that in order to get the benefit of Sections 4 and 8 of the Agrarian Reforms Act, 1976 it has to be established that there was a relationship of a landlord and tenant between the parties and a tenant who was in possession of the land was paying rent to the landlord.

Justice Javed Iqbal Wani emphasized that the Act aimed to extinguish the landlord-tenant relationship and provided a specific process for tenants to benefit from it. This included attestation of mutations under sections 4 and 8, based on the existence of a landlord-tenant relationship.

Offences Under Prevention Of Corruption Act Can Be Invoked Against Persons Discharging Public Duty, Not Only Public Servants: J&K High Court

Case Title: Sheikh Abdul Majeed Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 255

The Jammu & Kashmir High Court held that a broad interpretation of the term "public servant" under Section 2(c) of the Prevention Of Corruption Act is essential to curb the growing menace of corruption in the society imparting public duty.

Justice Wasim Sadiq Nargal also clarified that it would be inappropriate to limit the definition by an interpretation which would be against the spirit of the statute.

“In furtherance of the fight against corruption, a broad interpretation to the provisions of this statute is required to be given and the arms of this Act are required to be extended to the maximum. The offences under the P.C.Act can be invoked not only against a public servant but also against a person, who by virtue of his office has been discharging 'public duty'”.