Jammu and Kashmir and Ladakh High Court Weekly Roundup March 11 - March 17, 2024

Gulab Singh Vs Kuldeep Singh 2024 LiveLaw (JKL) 36

Jehangir Ahmad Mir Vs UT of J&K 2024 LiveLaw (JKL) 37

Ashok Kumar Vs Union of India through Secretary to Govt Industries Department 2024 LiveLaw (JKL) 38

J&K Housing Board Vs Smt Harbans Kour 2024 LiveLaw (JKL) 39

Smt. Rachna Gupta Vs Dr. Parmodh Baru 2024 LiveLaw (JKL) 40

Mohd. Shafi Masi Vs UT of J&K 2024 LiveLaw (JKL) 41

Mohd. Jameel Vs The State of Jammu and Kashmir 2024 LiveLaw (JKL) 42

Baldev Singh Vs State of Jammu & Kashmir 2024 LiveLaw (JKL) 43

Judgments/Orders:

O.47 R.27 CPC | While Court Can't Usually Record Additional Evidence At Appellate Stage, Ceratin Exceptions Are Carved Out For Doing So: J&K High Court

Case Title: Gulab Singh Vs Kuldeep Singh

Citation: 2024 LiveLaw (JKL) 36

The Jammu and Kashmir & Ladakh High Court said that ordinarily the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court.

However clarifying the circumstances under which an appellate court can allow parties to introduce new evidence during an appeal Justice Javed Iqbal Wani observed,

“Normally an appellate court should not allow additional evidence to be produced and decide an appeal on the basis of the material on record…yet said Order 47 Rule (27) proceeds to carve out an exceptions and enumerates the circumstances in which an appellate court can permit leading of additional evidence under clause (a), (aa) or (b) of sub rule (1) of Rule 27”

Dossier Seeking Preventive Detention By 'Name-Calling' Without Supporting Facts Leads To Fragile Detention Order Which Can Be Quashed: J&K High Court

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

Citation: 2024 LiveLaw (JKL) 37

Quashing a detention order under the Jammu and Kashmir Public Safety Act, 1978 the Jammu and Kashmir and Ladakh High Court observed that a preventive detention order based on mere hunches and speculations from law enforcement authorities cannot be justified.

A bench of Justice Rahul Bharti emphasized,

“A dossier by the sponsoring authority for seeking preventive detention of a person if obtaining in the form of just name-calling against a given person without bearing supporting factual inputs will only lead to a detention order, if passed by the detention authority, against a person a very fragile detention order amenable to suffer quashment”.

ID Act | Nexus Between Services Of Employee & Services Of Institute Essential To Bring Organization Within Scope “Industry”: J&K High Court

Case Title: Ashok Kumar Vs Union of India through Secretary to Govt Industries Department.

Citation: 2024 LiveLaw (JKL) 38

Shedding light on the definition of 'industry' under the Industrial Disputes Act, 1947 (ID Act) the Jammu and Kashmir and Ladakh High Court observed that the essential criterion for an organisation to be considered an 'industry' is the nexus between the services provided by an employee and those rendered by the institute.

Explaining the contours of the term “Industry” used in the Act Justice Sanjeev Kumar observed,

“The nexus, direct or indirect between the services provided by an employee and the services rendered by the Institute is sine qua non to bring an organization within the scope of the term „industry‟ as defined in Section 2(j) of the Act”.

S. 57 J&K Housing Board Act | Provision Of Prior Notice Never To Non-Suit Litigant, But To Allow For Settlement & Avoid Unnecessary Litigation: High Court

Case Title: J&K Housing Board Vs Smt Harbans Kour.

Citation: 2024 LiveLaw (JKL) 39

The Jammu and Kashmir and Ladakh High Court has ruled that the purpose of a notice provision in the J&K Housing Board Act is not to dismiss lawsuits on technical grounds.

Expounding on the mandate of Section 57 of the Housing Board Act which provides for notice Justice Sanjay Dhar observed,

“The purpose of giving prior notice for filing of the suit under Section 57 of the Act can never be to non-suit a litigant on technical grounds. Its purpose is only to give the Housing Board and its officers an opportunity to re-consider the legal position and to make amends and settle the claim of the proposed plaintiff so that public money and time is not wasted on unnecessary litigation”.

CPC | Power Of Court To Preserve Existing Condition Of Property Distinct From Power To Ascertain, Collect Or Elucidate Facts In Dispute: J&K HC

Case Title: Smt. Rachna Gupta Vs Dr. Parmodh Baru.

Citation: 2024 LiveLaw (JKL) 40

Making a crucial distinction between two key provisions of the Civil Procedure Code (CPC) - Order 39 Rule (7) and Order 26 Rule (9) the Jammu and Kashmir and Ladakh High Court highlighted that Order 39 Rule (7) primarily aims to record the existing condition of property to monitor changes or interference by parties, while Order 26 Rule (9) focuses on elucidating facts relevant to the dispute without collecting evidence for any party.

Clarifying the purpose of each provision and how it prevents misuse by parties in a lawsuit Justice Javed Iqbal Wani observed,

“It is pertinent to note here that the provisions of Order 39 Rule (7) of CPC are applicable for the disposal of an interlocutory application, whereas the provisions of Order 26 Rule (9) has its relevance on determination of the lis between the parties”

[S.438 CrPC] Approaching Sessions Court First For Anticipatory Bail Serves Both Ends & Administration Of Justice: J&K High Court

Case Title: Mohd. Shafi Masi Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 41

The Jammu and Kashmir and Ladakh High Court reiterated that it is advisable for individuals seeking anticipatory bail to first approach their local Sessions Court under Section 438 of the Criminal Procedure Code (CrPC).

This principle ensures both justice and efficient administration of justice, a bench of Justice Rajesh Sekhri emphasised.

[S. 27 Evidence Act] BSF Didn't Act As "Police Officer" When Recovering Arms & Ammunition From Accused During Search & Cordon Operation: J&K High Court

Case Title: Mohd. Jameel Vs The State of Jammu and Kashmir.

Citation: 2024 LiveLaw (JKL) 42

The Jammu and Kashmir and Ladakh High Court ruled that the recovery of arms and ammunition from an accused at his instance by the Border Security Force (BSF) during a search and cordon operation does not violate Section 27 of the Indian Evidence Act.

Clarifying the scope of "police officer" under the Evidence Act and its application to the BSF's powers under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 Justice Sanjeev Kumar observed,

“In such situation when an armed force of the Union exercising power under the Special Powers Act, 1990 in respect of disturbed area arrests a person or makes recovery of any arms and ammunition from him does not strictly act as a police officer, a term used in Section 27 of the Indian Evidence Act”.

[J&K Wakfs Act 1978] Act Overrides All Other Laws, Any Sales Of Wakf Properties Inconsistent With It Are Legally Insignificant & Inoperative: High Court

Case Title: Baldev Singh Vs State of Jammu & Kashmir

Citation: 2024 LiveLaw (JKL) 43

The Jammu and Kashmir and Ladakh High Court ruled that the Jammu and Kashmir Wakfs Act, 1978 overrides all other laws when it comes to Wakf properties.

Shedding light on the status of Acts which are inconsistent with the Waqf Act Justice Javed Iqbal Wani observed,

“The Act of 1978 and of the rules and orders made thereunder shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law”.