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

Basit Amin Makhdoomi

3 July 2023 5:00 PM IST

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.

Jammu & Kashmir High Court Acquits Man In 22 Years Old Rape Case

Case Title: Raja Sajad Ahmad Wan Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 151

The Jammu and Kashmir and Ladakh High Court acquitted a man accused of having committed a rape about 22 years ago. It observed that non-examination of the material Prosecution witnesses i.e. the Doctor and the Investigating Officer, not only causes prejudice to the case of the accused, but also to the case of the Prosecution and creates a reasonable doubt against his involvement in the offence.

GST Budgetary Support Scheme Can’t Be Interpreted Liberally: J&K And Ladakh High Court

Case Title: M/s Best Crop Science Industrial Area Versus Union of India

Citation: 2023 LiveLaw (JKL) 152

The Jammu & Kashmir and Ladakh High Courts held that the GST Budgetary Support Scheme cannot be interpreted liberally.

The bench of Chief Justice N. Kotiswar Singh and Justice Vinod Chatterji Koul observed that the new scheme provides certain benefits by way of budgetary support to such units that were granted excise duty exemption under an earlier tax regime prior to the introduction of the GST regime. However, budgetary support is conditional and not blanket.

No Appeal Or Revision Against Delay Condonation In Filing Application U/S 34 For Setting Aside Arbitral Award: Jammu & Kashmir High Court

Case Title: Mahant Subash Shah Vs Kabir Singh & Anr

Citation: 2023 LiveLaw (JKL) 153

The Jammu and Kashmir and Ladakh High Court held that no appeal or revision would lie against an order allowing an application for condonation of delay accompanying an application filed under section 34 of the Arbitration and Conciliation Act for setting aside arbitral award.

A bench of Justice Javed Iqbal Wani said the legislature by using expression an appeal shall lie from the orders provided therein "and from no others" in Section 37 (Appealable orders) has taken away the right to appeal against all orders except specified in Section 37 (1) and (2).

Examination-In-Chief Of Witness Can't Fasten Liability Unless Opposite Party Is Afforded Opportunity To Cross Examine: Jammu & Kashmir High Court

Case Title: State of J&K Vs Davinder Kumar & Ors.

Citation: 2023 LiveLaw (JKL) 154

Upholding the acquittal of a Police officer in a 20 year old rape case, the Jammu and Kashmir and Ladakh High Court said that examination-in-chief of a witness cannot be taken into consideration to fasten any liability, unless the opposite party is afforded a reasonable opportunity to cross-examine said witness as regards information tendered by him in his examination-in-chief.

"It shall be highly unsafe to consider the chief examination of a witness, who is not subjected to cross examination and court in such circumstances, is left with no option, but to ignore such testimony", a bench of Justice Rajesh Sekhri observed.

Jammu & Kashmir High Court Upholds Acquittal Of Alleged Lashkar-E-Taiba Members Due To 'Unreliable' Prosecution Evidence

Case Title: State (now UT) of J&K Vs Bashir Ahmad

Citation: 2023LiveLaw (JKL) 155

Terming the evidence of prosecution as highly unreliable, the Jammu and Kashmir and Ladakh High Court upheld the acquittal of alleged active members of Lashkar-e-Taiba, who as per prosecution were hell-bent upon creating unrest in the valley and had been indulging in the acts of sabotage and terrorist activities to dislodge the Governments.

Expressing serious reservations against the evidence that the prosecution had put forth before the trial court a bench of Justice MA Chowdhary observed,

“The story of the prosecution otherwise seems to be unreliable in view of the fact that the seven persons allegedly involved in terrorist activities and as alleged by the police to be members of Laskhar-e-Taiba a dreaded organization were sitting like ducks at a public place in Wildlife Sanctuary at Manda waiting for the police to be arrested without any reaction and despite availability of the weapon/explosives they had not used them to retaliate while being arrested by the police”.

'Prior Jural Relationship' With Cooperative Society Necessary For Invoking Dispute Redressal Mechanism U/S 70: Jammu & Kashmir High Court

Case Title: Shukal Singh Vs v/s G.M., Jammu Co-Operative Wholesale Ltd.& Anr.

Citation: 2023 LiveLaw (JKL) 156

The Jammu and Kashmir and Ladakh High Court clarified that Section 70 of the J&K Cooperative Societies Registration Act serves as an internal mechanism for resolving disputes among parties who already have a legal relationship with each other before the dispute arises. It cannot be applied to individuals who do not have any 'prior jural relationship' with the individuals involved in the society's affairs, it emphasised.

Dispatch Of Notice By Bank U/S 13(2) SARFAESI Act Is An Official Act, Presumption Under Evidence Act That It Was Performed Regularly: J&K High Court

Case Title: M/S Shaf Sons through Gowhar Ahmad Mir & Another Vs Jammu & Kashmir Bank Ltd. & Ors.

Citation: 2023 LiveLaw (JKL) 157

The Jammu & Kashmir and Ladakh High Court held that dispatching of notice by a Bank under Section 13(2) of the SARFAESI Act, to the borrower to discharge in full his liabilities, is an official act with a presumption that it was performed regularly.

Section 114(e) of the Evidence Act establishes a presumption that judicial and official acts are performed regularly and in the context of the SARFAESI Act, the dispatching of a notice by a bank to a borrower falls under this category of official acts, a bench comprising Justices Atul Sreedhan and Mohal Lal emphasised.

Govt Duty Bound To Protect Evacuee Property, Cannot Act Arbitrarily As Owner With Rights Of Alienation: Jammu & Kashmir High Court

Case Title: Mohammad Sultan Nagoo vs Custodian Evacuee Property and others.

Citation: 2023 LiveLaw (JKL) 158

The Jammu & Kashmir and Ladakh High Court has emphasised that the government has a responsibility to safeguard, maintain, and effectively utilize evacuee properties. It cannot make arbitrary decisions or treat these properties as if it is the rightful owner with the power to sell them off, it clarified.

State Cannot 'Pick & Choose' In Selection Process, Must Provide Non-Discriminatory Reasons For Appointment: Jammu & Kashmir High Court

Case Title: Ravinder Singh Vs J&K Sports Council.

Citation: 2023 LiveLaw (JKL) 159

The Jammu and Kashmir and Ladakh High Court observed that when exceptionally qualified candidates are not offered appointments, the State must provide valid and non-discriminatory reasons for its decision. The State, especially when it functions as an employer, is obligated to adhere to the principles outlined in Article 14 of the Constitution, it emphasised.

Presumption Of Guilt U/S 29 POCSO Act Rebuttable: Jammu & Kashmir High Court Grants Bail To Woman Accused Of Facilitating Her Daughter's Rape

Case Title: Naseema Begum Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 160

The Jammu and Kashmir and Ladakh High Court has granted bail to a woman, accused of assisting the primary suspect in a POCSO case filed over alleged rape of her own daughter.

Presumption of guilt under Section 29 is rebuttable and if the accused can demonstrate to the court during the trial that there is material evidence contradicting the presumption of guilt, they may be granted bail, a bench of Justice Sanjay Dhar maintained.

Civil Court Can Seek Police Assistance To Enforce Temporary Injunctions: Jammu & Kashmir High Court

Case Title: Chajju Singh Bharat Bhushan Gupta Vs Subash Aggarwal and others Chajju Singh and ors.

Citation: 2023 LiveLaw (JKL) 161

The Jammu and Kashmir and Ladakh High Court said that while the Code of Civil Procedure (CPC) does not explicitly provide for police assistance in enforcing temporary injunctions, Section 151 of the Code allows the Civil Court to exercise inherent powers to ensure justice and prevent abuse of the court's process.

This provision grants the court the authority to direct the police to provide necessary assistance when there is disobedience or breach of its orders issued under Order XXXIX Rules 1 & 2 of the Code and hence enables the court to maintain the integrity of its orders and ensure the effective implementation of temporary injunctions, a bench of Justice Rajesh Sekhri observed.

Jammu & Kashmir And Ladakh High Court Orders State To Pay Rs 5 Lakh Compensation To Family Of Undertrial Killed In Srinagar Central Jail

Case Title: Mst Jana Vs State of J&K

Citation: 2023 LiveLaw (JKL) 162

Granting a compensation of an amount of Rs. 5 Lakh to the kin of an undertrial who was killed as a result of an attack by a co-prisoner inside Srinagar Central Jail, the Jammu and Kashmir and Ladakh High Court observed that the prison authorities cannot be absolved of their duty to ensure the safety and security of the undertrials.

"Even though the deceased was an undertrial in a murder case, the respondents were not absolved of their liability to ensure his safety and security in the jail. A prisoner cannot be deprived of his constitutional rights except in accordance with law," Justice Sanjay Dhar said.

J&K Land Acquisition Act | Collector Has No Power To Recall Or Review Compensation Award: High Court

Case Title: Mohd Sharief and others Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 163

The Jammu and Kashmir and Ladakh High Court held that once an award has been made under Section 11 of the State Land Acquisition Act, 1990 the same is final and binding on the parties. The Collector has no authority to recall or review an award after it has been passed, it clarified.

[Motor Accident] Claimant Can't Rely On Disability Certificate Without Examining Doctor Who Provided Treatment Or Assessed Disability: J&K High Court

Case Title: National Insurance Co. Ltd. Subash Chander Vs Subash Chander and others. National Insurance Company Ltd

Citation: 2023 LiveLaw (JKL) 164

The Jammu and Kashmir High Court underscored the critical role of accurate medical evidence in assessing disability and income for determining just compensation in motor accident claims.

A bench comprising Justice Sanjay Dhar has observed,

"In order to ascertain the nature of disability of an injured/claimant and its effect upon his earning capacity, the Tribunal has to make every effort to record the evidence of the Doctor who has treated the injured or who has assessed his permanent disability. Mere production of a disability certificate cannot be taken as proof of the extent of disability stated therein".

[S.55 NDPS Act] Prosecution Obliged To Prove 'Safe Custody' Of Contraband Upon Seizure, Non-Compliance Leads To Acquittal: Jammu & Kashmir High Court

Case Title: State of J&K Vs Sham Lal

Citation: 2023 LiveLaw (JKL) 165

Highlighting the significance of Section 55 of the NDPS Act, the Jammu & Kashmir and Ladakh High Court has said that this provision was specifically introduced to deter any attempts to tamper with contraband. It stresses the crucial need for promptly transferring it to the secure storage of police stations and timely forwarding it to the Forensic Science Laboratory (FSL)

The burden lies on the prosecution to prove these crucial steps were followed and failure to demonstrate proper handling of contraband raises doubts about its authenticity and integrity, it maintained.

Jammu & Kashmir And Ladakh High Court Dismisses Writ Petition Challenging SCN Regarding Export Of Banned Yarn Shawls

Case Title: M/s Ali Shah through Arif Ahmad Shah Versus Union of India and others

Citation: 2023 LiveLaw (JKL) 166

The Jammu & Kashmir And Ladakh High Court has dismissed a writ petition challenging a show cause notice regarding the export of banned yarn shawls.

The bench of Justice Vinod Chatterji Koul has observed that the act of respondents in seizing consignments or goods took place in Delhi, followed by other events including the issuance of show cause notices, etc., so it is the courts or forums in Delhi where the petitioner can lay his claim or raise his grievances.

Genuine Case For Relaxation: J&K High Court Directs Govt To Reconsider Employee's Claim For Reimbursement Of Medical Expenses Incurred Outside State

Case Title: Monica Pathania Vs State of J&K

Citation: 2023 LiveLaw (JKL) 167

The Jammu & Kashmir High Court ruled in favour of a contractual government employee, stating that medical expenses incurred by her for her husband's treatment outside the erstwhile State should be reimbursed.

The court emphasized that the government's power to relax rules should be used genuinely, not just to decorate the "Rule Book," and should be exercised in cases where strict adherence to the rules would unfairly burden the beneficiary.

Jammu & Kashmir HC Refuses Interest On Delayed Disbursal Under 'Budgetary Support Scheme', Says Its Not A Right But Concession For Industrial Units

Case Title: M/S VJ Jindal Cocoa Pvt. Ltd Vs Union of India and others

Citation: 2023 LiveLaw (JKL) 168

The Jammu & Kashmir and Ladakh High Court ruled that the benefit provided under the Budgetary Support Scheme is not a 'right' of industrial units. Instead, it is regarded as a concession or incentive granted by the Government of India to assist these units in overcoming financial challenges resulting from the withdrawal of area-based exemptions under the Central Excise Act, it clarified