Jammu & Kashmir & Ladakh High Court Monthly Digest: January 2023

Gulshan Nazir Vs Union of India 2023 LiveLaw (JKL) 1

M/S Aisha Construction Vs JKCA 2023 LiveLaw (JKL ) 2

Manzoor Ahmad Mir Vs UT of J&K 2023 LiveLaw (JKL) 3

Godrej Consumer Products Limited Versus Union of India 2023 LiveLaw (JKL) 4

Mst Zaiba Vs Ghulam Ahmad Zargar & Ors 2023 LiveLaw(JKL) 5

Zahid Nabi Khan Vs UT of J&K 2023 LiveLaw (JKL) 6

Khazir Mohammad Naikoo Vs UT of J&K 2023 LiveLaw (JKL) 7

Nazir Ahmad Chopan Vs Abdul Rehman Chopan 2023 LiveLaw (JKL) 8

Ruqaya Akhter Vs UT Through Crime Branch 2023 LiveLaw (JKL) 9

Mst Haleema & Ors Vs Mst Dilshada & Ors 2023 LiveLaw (JKL) 10

JK Montessori School Vs State of J&K & Ors 2023 LiveLaw (JKL) 11

Fayaz Ahmad Rather Vs UT of J&K & Ors. 2023 LiveLaw (JKL) 12

Javaid Ahmad Bhat Vs UT of J&K 2023 LiveLaw (JKL) 13

Judgments/Orders:

JKL High Court Slams Authorities For Denying Passport To Mehbooba Mufti's Mother, Says Passport Authority Can't Act As Mouthpiece of CID

Case Title: Gulshan Nazir Vs Union of India

Citation: 2023 LiveLaw(JKL) 1

Directing the Passport Officer to consider former J&K Chief Minister Mehbooba Mufti's mother's application for re-issuance of passport afresh, the Jammu & Kashmir and Ladakh High Court said that the authority has not to act as "mouthpiece of the CID". It ruled that the police verification report cannot override the statutory provisions of Section 6 of the Passport Act, 1967.

Setting aside the orders by which Mufti's mother Gulshan Nazir was refused passport, Justice M A Chowdhary said the passport officer shall consider the entire matter afresh and pass orders thereon within a period of six weeks.

When A Private Entity Is Amenable To Writ Jurisdiction, Judicial Review Restricted To Public Functions: J&K&L High Court

Case Title: M/S Aisha Construction Vs JKCA

Citation: 2023 LiveLaw (JKL ) 2

The Jammu and Kashmir and Ladakh High Court ruled that in cases where a private body is amenable to writ jurisdiction, the powers of judicial review are confined to actions which have an element of public duty involved.

12 Years After Arrest, J&K&L High Court Grants Bail To Constable Accused Of Murdering Wife; Says Police Prolonging Trial

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

Citation: 2023 LiveLaw (JKL) 3

Observing that a long period of incarceration of an accused without any hope of conclusion of trial leads to a meltdown of the the rigour of 1st Proviso to Section 437 CrPC, the Jammu & Kashmir and Ladakh High Court granted bail to a man accused of murdering his wife.

Justice Sanjay Dhar said the accused has "carved out a case for grant of bail" on account of his long incarceration for more than 12 years and on account of the fact that by the conduct of the prosecution and the police department, there is hardly any chance of conclusion of trial in near future.

Units Located In J&K Entitled For Central Excise Duty Exemption Prior To 1st July 2017 Liable To Pay GST: J&K & Ladakh High Court

Case Title: Godrej Consumer Products Limited Versus Union of India

Citation: 2023 LiveLaw (JKL) 4

The Jammu and Kashmir and Ladakh High Court held that units located in Jammu and Kashmir are entitled to central excise duty exemption prior to July 1, 2017, and are therefore liable to pay GST.

The division bench of Justice Tashi Rabsdan and Justice Mohan Lal observed that in terms of the Central Excise regime as it existed prior to July 1, 2017, the units located in Jammu & Kashmir and other states were eligible to avail exemption from payment of Central Excise duty in terms of area-based exemption notifications.

Co-Sharer Cannot Be Restrained From Raising Construction Over Portion Of Joint Holding In His Exclusive Possession: JKL High Court

Case Title: Mst Zaiba Vs Ghulam Ahmad Zargar & Ors.

Citation: 2023 LiveLaw(JKL) 5

The Jammu and Kashmir and Ladakh High Court ruled that a co-sharer, who is in exclusive possession of a joint holding, cannot be restrained from raising construction on the portion of which he is in exclusive possession.

Detention Order Passed For Pleasure Of Passing It, Grounds Not A Matter Of Wordplay: High Court Censures Kashmir Divisional Commissioner

Case Title: Zahid Nabi Khan Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 6

The Jammu & Kashmir and Ladakh High Court quashed a detention order under Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act, observing that it seems to have been passed for the pleasure of passing an order.

Justice Rahul Bharti said that the petitioner was on bail in the case under NDPS Act, thereby he was in regular attendance before the investigating agency and in a sense under the constructive custody of law.

S.311 CrPC Meant To Ensure There Is No Failure Of Justice Due To Mistake Of Parties In Bringing Valuable Evidence On Record: JKL High Court

Case Title: Khazir Mohammad Naikoo Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 7

Observing that the legislative intent behind Section 540 of J&K CrPC (pari materia with Section 311 of CrPC) is to ensure there is no failure of justice due to the mistake of either party in bringing the valuable evidence on record, the J&K&L High court set aside an order of the trial court in terms of which it had disallowed the petitioner to examine certain witnesses.

Justice Sanjay Dhar observed:

"A Court may, in its discretion, summon and examine any person as a witness who has not been summoned as a witness or recall/re-examine any person already examined and in case evidence of such person appears to the Court essential to the just decision of the case, it is the bounden duty of the Court to exercise its power under this provision".

S.143A NI Act | Magistrate Must Record Reasons For Exercising Discretionary Power To Order Interim Compensation: JKL High Court

Case Title: Nazir Ahmad Chopan Vs Abdul Rehman Chopan

Citation: 2023 LiveLaw (JKL) 8

The Jammu and Kashmir and Ladakh High Court reiterated that power to grant interim compensation under Sec 143-A of Negotiable Instrument Act is discretionary in nature and such interim relief must be based on reason and logic.

"There can be so many other reasons for a Magistrate to grant interim compensation in favour of the complainant but these reasons have to be recorded in the order so that the validity of the order is tested by the superior court if and when such an order is challenged", the court recorded.

S.102(3) CrPC Requiring Police Officer To Forthwith Report Seizure Of Property To Magistrate Only Directory In Nature: JKL High Court

Case Title: Ruqaya Akhter Vs UT Through Crime Branch.

Citation: 2023 LiveLaw (JKL) 9

The Jammu and Kashmir and Ladakh High Court held that since the provisions of CrPC do not provide for consequences of non-adherence to Section 102(3) it can be inferred that the said provision is not mandatory in nature even though the word “shall” has been used in the provision.

The provision stipulates that a police officer, after seizing any property, has to forthwith report the seizure to the Magistrate having jurisdiction and in case it is not convenient to transport the seized property to the court, he may entrust it to any person on his executing a bond to produce the property as and when required.

Muslim Law | No Need For Husband To Physically Depart From Gifted Property To Validate His Gift For Wife: JKL High Court

Case Title: Mst Haleema & Ors Vs Mst Dilshada & Ors.

Citation: 2023 LiveLaw (JKL) 10

The Jammu and Kashmir and Ladakh High Court observed that where a husband makes a gift to the wife, either of the matrimonial home occupied by both of them or any other property belonging to him, there is no need for actual physical departure by the donor to execute the Gift.

"The reason is that the relationship of husband and wife is different from any other relationship. Joint residence is an integral aspect of this relationship and the fact that the husband manages and looks after the property of the wife is backed by an implied presumption that he does it on behalf of his wife", Justice Sanjay Dhar recorded.

Sufficient Inbuilt Remedies Available Under J&K Electricity Act To Challenge Provisional Assessment, Writ Not Maintainable: High Court

Case Title: JK Montessori School Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 11

The Jammu and Kashmir and Ladakh High Court observed that the J&K Electricity Act 2010 provides sufficient inbuilt appellate remedies for anyone aggrieved of provisional electricity assessment. Therefore, invoking the writ jurisdiction would not be an appropriate mechanism to challenge the same.

Observing that when the statutory and equally efficacious remedy is available the writ petition should not be entertained and the party concerned should be relegated to such alternative remedy, Justice Nargal recorded,

"I don't find it a case, which is covered by the exceptions to the general rules that in the face of alternate and efficacious remedy, the Constitutional Court would entertain the present writ petition under Article 226 of the Constitution of India".

JKL High Court Imposes ₹1 Lakh Cost On Party Over Suppression Of Litigation History

Case Title: Fayaz Ahmad Rather Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 12

Deploring the conduct of the petitioner for indulging in suppression of material facts in order to secure a favourable order, the Jammu and Kashmir and Ladakh High Court on Wednesday imposed a cost of Rs 1,00,000/- (one lac) on the petitioner and directed the same to be deposited in the Lawyers Welfare Fund within a period of one month.

The costs came to be imposed by a bench comprising Justices Moksha Khajuria Kazmi while hearing a plea wherein the petitioner had assailed an order dated 12.11.2022 passed by the District Magistrate, Kulgam pursuant to which Tehsildar, Kulgam, had been directed to proceed on spot and evict the petitioner from the land.

Even Typographical Errors In Dossier Copied By Magistrate, No Application Of Mind: JKL High Court Quashes Preventive Detention Of Alleged LeT Aide

Case Title: Javaid Ahmad Bhat Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 13

The Jammu and Kashmir and Ladakh High Court observed that every case in which preventive detention of any citizen of India is sought by law enforcement agencies, the same demands a very fact-sensitive and law-centric application and approach of mind.

A bench of Justice Rahul Bharti quashed a preventive detention order against a detenue, who was "painted and portrayed" as an aide of Lashar-e-Taiba (LeT) outfit by the detaining authority, merely one year after a previous detention order against the said detenu was quashed.