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

Basit Amin Makhdoomi

3 April 2023 6:00 AM GMT

Before Resorting To OV R15 CPC, Must Show Defendant's Absent From Residence & No Likelihood Of Being Found: Jammu & Kashmir High Court

Case Title: Dr Kiran Bala Vs Dr Ashwini Kumar Singh Jasrotia.

Citation: 2023 LiveLaw (JKL) 39

The Jammu and Kashmir and Ladakh High Court ruled that before resorting to provisions contained in Order V Rule 15 (Issuance of Summons) of the CPC, it has to be shown that the defendant is absent from his residence at the time when the service of the summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time.

A bench comprising Justice Sanjay Dhar observed,

"It has also to be shown that the defendant has no agent empowered to accept the service of the summons on his behalf. Only when the conducts above are fulfilled, O V, R15 can be taken recourse to".

Cannot Rescue Litigant Filing "Cryptic" Delay Condonation Application Without Giving Proper Account Of Dates: Jammu & Kashmir High Court

Case Title: Pooja Devi & Ors Vs Tarseem Lal & Ors.

Citation: 2023 LiveLaw (JKL) 40

The Jammu and Kashmir and Ladakh High Court dismissed a ‘cryptic’ delay condonation application for not giving proper account of dates.

A bench comprising Justice MA Chowdhary observed,

"Courts cannot come to aid and rescue of litigant where application for condonation does not spell out sufficient cause and the approach of petitioners, in making such application in casual and cryptic manner".

13-Yr-Old Electrocuted, Dies: Jammu & Kashmir High Court Invokes Absolute Liability, Grants ₹10 Lakh Compensation To Mother

Case Title: Radha Sharma Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 41

Invoking the principle of absolute liability, the Jammu and Kashmir and Ladakh High Court on Wednesday granted Rs. 10 Lakh compensation to the mother of a 13 year old who died due to electrocution.

A bench comprising Justice Wasim Sadiq Nargal observed that the rule of absolute liability does not obligate the claimant to prove negligence. Rather, on account of hazardous and dangerous nature of enterprise, the liability is fastened on the defaulter even when due and necessary care has been taken.

Stone Crusher Industry Plays Pivotal Role In Country's Development, Govt Policy Has Liberalized Mining Regime: J&K And Ladakh High Court

Case Title: Inhabitants of Sheva Shirshu Doda Vs UT of J&K & Ors

Citation: 2023 LiveLaw (JKL) 42

Terming the Standing Order issued by J&K Govt in 2021 for regulation of the stone crushing units in the UT as a valid piece of legislation, the Jammu and Kashmir High Court said that it has in a way liberalized the establishment of stone crusher units.

The bench of Justice Wasim Sadiq Nargal observed:

"The growth of the country and infrastructural development, the stone crusher industry plays a pivotal role and without operating the same, the development of the country will come to a standstill".

Creation Of Special Authority No Reason To Condone Delay, Party Must Offer Explanation: Jammu & Kashmir High Court

Case Title: Union Of India Vs Assistant Labour Commissioner & Ors.

Citation: 2023 LiveLaw (JKL) 43

The Jammu and Kashmir and Ladakh High Court set aside an order of the Assistant Labour Commissioner condoning at least 15 years delay by certain persons in seeking compensation under Employees Compensation Act on behalf of their relatives, on the solitary premise that it is a creation of special legislation.

Justice Rajesh Sekhri observed,

"Creation of an Authority under special legislation cannot be a reason, much less sufficient, to condone the delay and as already explained, it is the applicant who is obliged to explain the delay and not the Authority or the Court, as the case may be, to make out a case for condonation of delay."

Cause Of Action Cannot Be Generated By Repeated Representations, Right To Claim Must Be Established: Jammu & Kashmir High Court

Case Title: Jammu Development Authority Vs Jag Mohan Wazir & Anr.

Citation: 2023 LiveLaw (JKL) 44

The Jammu and Kashmir and Ladakh High Court has ruled that ‘cause of action’ cannot be generated by making repeated representations and serving legal notices to the concerned authorities as every fact is required to be proved in order to support the right being claimed before the court.

Jammu & Kashmir High Court Quashes Rape FIR, Says Proposal For Live-In To Ascertain How Relationship Will Work Out Not False Promise To Marry

Case Title: Syed Shahid Hamdani Vs UT of J&K.

Citation: 2023 (JKL) 45

The Jammu and Kashmir and Ladakh High Court quashed a rape FIR, observing that a proposal made by the accused to prosecutrix for live-In relationship, so as to ascertain how their relationship will work, does not tantamount to false promise to marry.

The bench comprising Justice Sanjay Dhar observed,

"He proposed to have live-in-relationship with her, meaning thereby that at the initial stage the petitioner had not indicated his intention to marry the prosecutrix but he only wanted to ascertain as to how their relationship will work out, whereafter he was to make up his mind as to whether or not he would enter into wedlock with the prosecutrix. This goes on to show that there was no promise of marriage from the petitioner at the time of initiation of their relationship".

Party Seeking Condonation Of Delay In Filing Appeal Against Ex-Parte Decree Not Required To Explain Its Absence During Trial: Jammu & Kashmir High Court

Case Title: Bashir Ahmad Dar Vs Shameema & Ors.

Citation: 2023 LiveLaw (JKL) 46

The Jammu and Kashmir and Ladakh High Court has held that the seeker of condonation of delay is not required to explain the period of his absence during the trial, what is required is explanation for period of delay which runs as per the Limitation Act.

Pointing out the perversity in the judgment of the First Appellate Court the bench further added that law provides that delay is to be explained for the period beyond the period of limitation prescribed and the limitation in this case would run from the date of passing of the decree and not from any date prior to passing of the same.

Article 22(5) | Representation Made On Behalf Of Detenu Should Be Considered & Disposed With A Sense Of Urgency: Jammu & Kashmir High Court

Case Title: Arif Ahmad Khan Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 47

Quashing a Preventive detention order under J&K Public Safety Act, the Jammu and Kashmir and Ladakh High Court recently observed that the words "As soon as may be‟, in Article 22 (5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.

Jammu & Kashmir High Court Sets Aside Single Bench Order For Probe Against J&K SSB, Matter To Be Decided Afresh

Case Title: J&K Service Selection Board Vs Vinkal Sharma.

Citation: 2023 LiveLaw (JKL) 48

Setting aside the order of Single bench in terms of which it had ordered a probe into conduct of J&K Service Selection Board after the recruitment body was alleged to have appointed a 'Blacklisted' agency for conducting exam, the Division bench of J&K&L High Court remitted the matter back to the Single Judge with a request to decide the matter afresh.

A bench comprising Justices Tashi Rabstan and MA Chowdhary observed,

"We are of the view that the Writ Court had no jurisdiction to finally dispose of the petition without first issuing notice and affording an opportunity to the opposite side for filing reply on merits of the case"

Jammu & Kashmir And Ladakh High Court Accepts Unconditional Apology From Sr AAG, DM Anantnag

Case Title: Mohammad Shafi Naikoo Vs District Magistrate Anantnag & Ors.

Citation: 2023 LiveLaw (JKL) 49

Observing that the apology tendered by Senior Additional Advocate General Abdul Rashid Malik and District Magistrate Anantnag is accompanied with a sense of genuine remorse and repentance and is not a calculated strategy to avoid punishment, the Jammu and Kashmir and Ladakh High Court accepted their unconditional apology.

Accepting the apology, a bench of Justice Wasim Sadiq Nargal observed,

"Apology cannot be accepted, in case it is hollow; there is no remorse, no regret, no repentance, or if it is only a device to escape the rigor of the law. Such an apology can merely be termed as a “paper apology”.

When Issuing Authority Verifies Experience Certificate, Counter-Signing Authority's Denial Won't Lead To Termination Sans Enquiry: Jammu & Kashmir HC

Case Title: Rokade Santosh Sandashiv & Anr Vs Union of India & Anr.

Citation: 2023 LiveLaw (JKL) 50

The Jammu and Kashmir and Ladakh High Court ruled that mere denial of counter signature on a certificate in absence of proper enquiry or finding does not warrant major punishment of termination of service, which becomes punitive in nature particularly when the order of termination is not simpliciter but the stigma is attached to the same.

The bar of proving forgery is high and must be supported by sufficient evidence and in absence of any detailed enquiry conducted in this regard, it cannot be assumed that the documents has been forged by the petitioner No.1", the bench explained.

When Company Is An Offender, No Vicarious Liability Can Be Attached To Its Officers Unless Statute Specifically Provides So: Jammu & Kashmir High Court

Case Title: Reema Arora & Ors Vs Law Enforce Inspector (Fertilizer)

Citation: 2023 LiveLaw (JKL) 51

The Jammu and Kashmir and Ladakh High Court recently quashed a criminal complaint filed under Essential Commodities Act, 1955 against the directors of a company on the ground that the complaint nowhere spells out as to how and in what manner the petitioners/accused were incharge of or were responsible to the accused company.

"The legal intendment is clear that when the company is an offender, vicarious liability of its directors can be imputed in terms of the provisions of a statue, making it a deeming fiction....There is no provision in the Penal Code to attach vicarious liability on Managing Director or Directors or employees of a Company.", the bench said.

Jammu & Kashmir High Court Comes To Aid Of Below Poverty Line Woman "Duped" Of Employment By Govt Officials To Oblige Sarpanch

Case Title: Rajana Devi Vs State of J&K &Ors.

Citation: 2023 LiveLaw (JKL) 52

The Jammu and Kashmir and Ladakh High Court observed that the perversity of an action or decision by a public authority/official, acting in the domain of public administration, irrespective of the tier of the administration, has no hiding from the pendular gaze of the Rule of Law which may for a given case get late but not defaults in catching up with the wrong deed and wrongdoer masquerading in the domain of the public administration.

S.7 Migrant Immovable Property Act Requiring Surrender Of Property To Prefer Appeal Against Eviction In Tune With Peculiar Conditions Of J&K: High Court

Case Title: Abdul Khaliq Rather Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 53

The Jammu and Kashmir and Ladakh High Court ruled that the condition to surrender the property for preferring an appeal under Section 7 of the Migrant Immovable Property Act 1997 against eviction order, was necessitated by the peculiar situation prevailing in the Union Territory of Jammu and Kashmir.

The bench comprising Justices Rajnesh Oswal & Mohan Lal observed,

"This provision was incorporated in view of the extraordinary situation prevailing in the then State of Jammu and Kashmir (now Union Territory) because of migration from the then State of Jammu and Kashmir (now Union Territory) and more particularly from the Kashmir Valley".

Compulsory Risks In Insurance Automatically Transferred To Transferee Of Vehicle Even When Certificate Of Insurance Not Transferred: Jammu & Kashmir High Court

Case Title: New India Assurance Co. Ltd Vs Anita Devi and others

Citation: 2023 LiveLaw (JKL) 54

The Jammu and Kashmir and Ladakh High Court ruled that whoever may be the actual owner of the motor vehicle at the time of the accident, compulsory risks covered under the policy of insurance get automatically transferred to the transferee of a vehicle even though certificate of insurance has not been transferred in his favour.

No Absolute Bar On Citizens To Invoke Writ Jurisdiction In Contractual Matters With State: Jammu & Kashmir High Court

Case Title: Mukhtar Ahmad Andrabi Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 55

The Jammu and Kashmir and Ladakh High Court ruled that in matters of contractual dispute with the State and its instrumentalities there is no absolute bar to exercise the writ jurisdiction and the High Court should take a holistic view and make a determination as to whether it would be proper to exercise its writ jurisdiction.

Justice Wasim Sadiq Nargal observed,

"There has been paradigm shift in the approach of the Courts in exercise of its Writ Jurisdiction in the matters of contractual disputes with State and its authorities. The law regarding the exercise of judicial review in contractual matters with State or its instrumentalities has definitely evolved over the years and the ordinary citizens can, in appropriate cases, approach the High Courts for exercise of Writ Jurisdiction."

Insurance Company Not Liable To Unauthorised Passengers Traveling In Offending Vehicle, Pay & Recover Principle Not Applicable: J&K High Court

Case Title: National Insurance Co. ltd.Vs Mursa Begum and ors.

Citation: 2023 LiveLaw (JKL) 56

The Jammu and Kashmir and Ladakh High Court has observed that once it is shown that deceased/injured persons were traveling as unauthorised passengers in an offending vehicle and their risk is not covered under the terms insurance policy, the insurer cannot be saddled with the liability to compensate them and even the principle of 'Pay and Recover' will not be attracted.

Facilitating Question Paper Leak In Competitive Exam More Heinous Than Murder: Jammu & Kashmir HC Refuses Bail To BSF Officer In SI-Recruitment Scam

Case Title: Karnail Singh Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 57

The Jammu and Kashmir and Ladakh High Court rejected the bail application of a BSF officer, alleged to be the main accused in the J&K Service Selection Board Police sub-inspector recruitment scam case observing that grant of bail in economic offences which affect a larger section of the society on the mere fact that the offence with which an accused is charged does not carry a very severe punishment does not by itself create a ground to enlarge the accused on bail.

A bench comprising Justice Sanjay Dhar, while rejecting the bail application of the accused, a Border Security Force (BSF) Commandant (Medical), observed,

"A person, who indulges in facilitating leakage and sale of question papers relating to competitive examinations, plays with the career and future of thousands of young aspirants. Such an act is more heinous than an offence of murder because by killing a person only one family gets affected but by ruining the career of thousands of aspirants, whole society is adversely impacted".

Once Magistrate Seeks Preliminary Report On Allegations Made In Application U/S 156(3) CrPC, Police Cannot Straightaway Lodge FIR: Jammu & Kashmir HC

Case Title: Farooq Ahmad & Ors Vs State of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 58

The Jammu and Kashmir and Ladakh High Court observed that when a Magistrate directs a preliminary enquiry under Section 156(3) CrPC and the police without reporting back to the Magistrate straightway goes on to file an FIR without any direction thereto, the same amounts to usurpation of the powers of the Magistrate.

Revisional Powers U/S 102 Juvenile Justice Act Vested With High Court, Cannot Be Exercised By Sessions Court/ Children’s Court: Jammu & Kashmir HC

Case Title: Master X th. Shah Wali Vs State of J&K

Citation: 2023 LiveLaw (JKL) 59

The Jammu and Kashmir and Ladakh High Court made it clear that a Sessions Court or a Children’s Court cannot entertain a revision petition against the order of Juvenile Justice Board.

Justice Sanjay Dhar observed that the power of revision under Section 102 of the Juvenile Justice Act is vested with the High alone. "No such power is vested with the Court of Sessions or Children’s Court," the bench remarked.

S.25F ID Act Not Complied: Jammu & Kashmir High Court Says Acceptance Of Compensation Won't Estop Workmen From Challenging Retrenchment

Case Title: India Tourism Development Corporation Limited & Anr Vs Fayaz Ahmad Sheikh & Ors.

Citation: 2023 LiveLaw (JKL) 60

The Jammu and Kashmir and Ladakh High Court ruled that in cases where there is a failure on the part of an employer to abide by the prescription of Section 25 of the Industrial Disputes Act 1947, the application of doctrine of Estoppel cannot lie against the employee who accepted compensation, while challenging his retrenchment order.

A bench comprising Justices Rajnesh Oswal and Mohan Lal observed,

"From the records, it is established that the retrenchment amount was paid to the Respondents in utter disregard of Section 25-F of the Act of 1947 and, therefore, once the employer has not followed the statutory obligation, then the acceptance of the retrenchment amount would not to be an estoppel for the workmen to challenge the order of retrenchment...If the manner of doing a particular act is prescribed under any Statute, then the act must be done in that manner only. Once an act prescribed under any Statute is not done in accordance with the conditions prescribed for its performance, then the doer of the said act cannot derive any benefit of that Act."

Jammu & Kashmir High Court Permits Minor Rape Victim To Medically Terminate 30 Weeks Old Pregnancy

Case Title: Ms. X (MINOR) Vs UT of J&K & Ors.

Citation: 2023 LiveLaw (JKL) 61

The Jammu and Kashmir and Ladakh High Court allowed the medical termination of a 30 week unwanted foetus, observing that while exercising the powers under Article 226 of the Constitution, a Constitutional Court has got wider powers than what is prescribed under Section 3(2) of the MTP Act of 1971.

No Distinction Between Retired & Inservice Employees For Prosecution Under Jammu & Kashmir Prevention Of Corruption Act: High Court

Case Title: Bopinder Singh Dua Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 62

The Jammu and Kashmir and Ladakh High Court made it clear that even retired employees of a Public Corporation can be be prosecuted under the Jammu & Kashmir Prevention of Corruption Act, if the circumstances so warrant.

Justice Javed Iqbal Wani observed that Section2(2)(c) of the Act, which defines 'Public Servant', is wide enough to include inservice as well as retired officer/servants/ member of the Corporation.

Can't Direct Govt To Enforce Strict Prohibition On Liquor, Directive Principles Not Enforceable: Jammu & Kashmir High Court

Case Title: Manzoor Ahmad Dar Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 63

Observing that Courts cannot issue a writ of mandamus for enforcing the directive principles of State policy, the Jammu and Kashmir and Ladakh High Court closed a petition seeking closure of liquor shops and establishments in the UT, besides seeking rehabilitation of those engaged in this business.

The bench comprising Justices Sanjeev Kumar and Puneet Gupta was hearing a plea seeking recall of the order passed by the division bench of the court on October, 27, 2015, in a Public Interest Litigation (PIL) which was filed by Karwani Islami Society, registered under the Societies Registration Act, 1998, seeking direction to the erstwhile State of J&K, to take necessary steps for prohibition of sale and consumption of liquor in the erstwhile State of J&K.

Order XLVII CPC | Erroneous View Of Law Not A Ground For Review: Jammu & Kashmir High Court

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

Citation: 2023 LiveLaw (JKL) 64

The Jammu & Kashmir and Ladakh has reiterated that an erroneous view of law is not a ground for review and a court cannot rehear and correct an erroneous judgment by way of a review.

"I am afraid the scope of review cannot be extended to re-appreciation of the evidence led by the parties before the trial court nor can this Court, in exercise of its power of review, sit over its own judgment regarding interpretation of a document," Justice Dhar explained.

General Allegations Of Insult Without Demonstrating Provocation To Breach Public Peace Won't Attract S.504 IPC: Jammu & Kashmir High Court

Case Title: Jia Lal Vs UT of J&K & Anr

Citation: 2023 LiveLaw (JKL) 65

The Jammu & Kashmir and Ladakh High Court observed that a mere act of insulting a person would not satisfy the ingredients of section 504 IPC ( Intentional insult with intent to provoke breach of the peace), rather insulting should be of such a nature as would give provocation to the person insulted to break the public peace or to commit any other offence, in order to attract the offence.

MV Act | Insurer Cannot Escape Liability On Premise That Legal Heirs Of DCase Title: IFFCO TOKIO General Insurance Co. Ltd Vs Om Prakash.

Case Title: IFFCO TOKIO General Insurance Co. Ltd Vs Om Prakash.

Citation:2023 LiveLaw (JKL) 66

The Jammu and Kashmir and Ladakh High Court has ruled that the insurer cannot escape its liability to pay compensation to the claimants on the ground that the legal heirs of the deceased owner were not made parties to the claim petitions

Object Of Jurisdiction Under Article 226 Is Enforcement, Not Establishment Of Right/ Title, Can't Decide Disputed Facts: Jammu & Kashmir High Court

Declining to display indulgence and exercising its jurisdiction under Article 226 of the Constitution, the Jammu and Kashmir and Ladakh High Court observed that the object of jurisdiction under Article 226 is the enforcement and not the establishment of right or title and hence a disputed question of fact cannot be investigated in a proceeding under Article 226 of the Constitution.

Civil Service Rules | Failure To Produce Chargesheet Within 3 Months Does Not Automatically Vitiate Employee's Suspension: Jammu & Kashmir High Court

Case Title: UT of J&K Vs Munshi Masood

Citation: 2023 LiveLaw (JKL) 68

Setting aside an order of Central Administrative Tribunal Srinagar, in terms of which it had quashed the suspension of an employee on the ground of his prolonged suspension, the Jammu and Kashmir and Ladakh High Court has recently ruled that failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension.

A bench comprising Justices Sanjeev Kumar and Puneet Gupta observed,

"It is true ordinarily whenever a Government servant is placed under suspension on a criminal charge, endeavour should be made to produce the charge sheet before the competent court of law within a period of three months. The failure to produce a challan/charge sheet within a period of three months does not automatically vitiate the suspension".

Jammu & Kashmir High Court Imposes ₹1L Cost On CWC And JJB Members For "Forum Shopping" Regarding Their Re-Appointments

Case Title: Dr. Khair-Un-Nisa and others Shalini Sharma and others Vs UT of J&K & others.

Citation: 2023 LiveLaw (JKL) 69

The Jammu & Kashmir and Ladakh High Court dismissed a petition to quash and set aside an advertisement notification for selections to constitute Juvenile Justice Boards and Child Welfare Committees under the Juvenile Justice (Care and Welfare) Act, 2015.

"The re-agitation of the issue may or may not be barred by the principle of “res judicata” but the same may, in the given circumstances, tantamount to an abuse of process of Court", the court said.

Investigation Into Non-Cognizable Offences Without Magistrate's Permission Can't Be Regularised By Subsequently Adding Cognizable Offences: J&K High Court

Case Title: Nikunj Sharma Vs State of J&K and another

Citation: 2023 LiveLaw(JKL) 70

The Jammu and Kashmir and Ladakh High Court ruled that once an FIR is registered for non-cognizable offences, the inclusion of a cognizable offence at a later stage of the investigation could not be used to circumvent the law.

Inadvertence To Produce Document Not Substantial Cause To Invoke Order XLI Rule 27 CPC: Jammu & Kashmir High Court

Case Title: Mohammad Maqbool Regu and ors Vs Hilal Ahmad & Ors.

Citation: 2023 LiveLaw (JKL) 71

The Jammu and Kashmir and Ladakh High Court ruled that inadvertence on the part of a party to produce a document before the Court cannot be construed as a substantial cause within the meaning of Rule 27 of Order XLI of the Civil Procedure Code(CPC) to allow application for production of additional documents.

"Mere fact that certain evidence is important per se is not in itself a sufficient ground for admitting that evidence in appeal," Justice Javed Iqbal Wani remarked.

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

Basit Amin Makhdoomi

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