Jammu And Kashmir And Ladakh High Court Monthly Digest: December 2023

Building Operation Controlling Authority Vs Vikas Gupta 2023 LiveLaw (JKL) 302

Members of Saini Community Th. Suksham Singh Vs UT of J&K 2023 LiveLaw (JKL) 303

Mehmooda Vs State of J&K 2023 LiveLaw (JKL) 304

The New India Assurance Co. Ltd Vs Safder Ali 2023 LiveLaw (JKL) 305

Subash Choudhary Vs J&K Special Tribunal Jammu 2023 LiveLaw (JKL) 306

NADEEM UR REHMAN & OTHERS Vs UT OF J&K & OTHERS 2023 LiveLaw (JKL) 307

M/s Oikos India Pvt. Ltd Vs M/s K.C. Hotels Pvt. Ltd 2023 LiveLaw (JKL) 308

Zareefa Banoo Vs Manzoor Ahmad Sheergujri 2023 LiveLaw (JKL) 309

Mahroz Akhter Vs Dr Azmat Gouhar 2023 LiveLaw (JKL) 310

Director Health Services and Another Vs. Iqbal Ahmad Baqal 2023 LiveLaw (JKL) 311

Asif Sultan Saida Vs Union Territory of J&K and anr 2023 LiveLaw (JKL) 312

Dr. Sandeep Mawa Vs U.T. of Jammu & Kashmir 2023 LiveLaw (JKL) 313

Inderjeet Khajuria Vs State Of J&K 2023 LiveLaw (JKL) 314

Bari Shah Vs UT of J&K 2023 LiveLaw (JKL) 315

Jamsheed Haroon and Another 2023 LiveLaw (JKL) 316

SMT. RANJEET KOUR Vs. STATE OF J&K & ORS 2023 LiveLaw (JKL) 317

S. Saroop Singh Vs Union of India through Defence Secretary 2023 LiveLaw (JKL) 318

Shafakat Vs Jammu and Kashmir Bank through its Chairman 2023 LiveLaw (JKL) 319

Sulabh International Social Service Organization Vs Saral Sugam Sewa Society 2023 LiveLaw (JKL) 320

OWAIS SYED KHAN Vs UT OF J&K & ORS 2023 LiveLaw (JKL) 321

Bashir Ahmad Bhat Vs Union Territory of Jammu and Kashmir 2023 LiveLaw (JKL) 322

Aabid Rashid Vs Union Territory of Jammu And Kashmir 2023 LiveLaw (JKL) 323

Kumar Wanchoo Vs Drug Inspector Manufacturing, Kashmir Division 2023 LiveLaw (JKL) 324

Union Territory of J&K V/s Northern Transformers 2023 LiveLaw (JKL) 325

UT of J&K Vs X 2023 LiveLaw (JKL) 326

Feroz Ahmed Sheikh Vs Union Territory of J&K 2023 LiveLaw (JKL) 327

Union of India Vs Jagjeet Kour 2023 LiveLaw (JKL) 328

University of Kashmir through Registrar V/s Prof. Gh. Nabi Sidiqi and Ors 2023 LiveLaw (JKL) 329

Ghulam Qadir Bhat and another V/s U.T of J&K and others 2023 LiveLaw (JKL) 330

Judgments/Orders:

BOCA Act | S.15 Confers Finality To Tribunal Orders, Invoking Extraordinary Jurisdiction Directly Conflicts With The Same: J&K High Court

Case Title: Building Operation Controlling Authority Vs Vikas Gupta

Citation: 2023 LiveLaw (JKL) 302

The Jammu and Kashmir and Ladakh High Court dismissed a writ petition invoking extraordinary jurisdiction, emphasizing that the finality of orders under Section 15 of the Building Operations Controlling Authority (BOCA) Act, 1988, would conflict with the imposition of extraordinary jurisdiction by the Court.

A bench of Justice Javed Iqbal Wani observed that since finality had been attached to an order made by an Authority or an appellate officer appointed by the Government for hearing appeal(s) under section 13 of the Act of 1988, filing of a petition while invoking extraordinary writ jurisdiction by the petitioners runs in direct conflict with section 15 of the Act of 1988.

High Court Restrains J&K Administration From Issuing Caste Certificates To Saini Community

Case Title: Members of Saini Community Th. Suksham Singh Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 303

The High Court of Jammu and Kashmir and Ladakh prohibited the Union Territory Administration from granting caste certificates to individuals belonging to the Saini Community until the government definitively establishes their status as a socially disadvantaged and underprivileged group.

Justice Rajnesh Oswal passed these directions while hearing a plea moved by the members of the Saini community assailing their inclusion as a weak and underprivileged (social caste) by way of a Government order dated October 19, 2022.

Judgment In Rem Extends Benefits To All Similarly Situated Employees, Denying Them Violates Articles 14 & 16: J&K High Court

Case Title: Mehmooda Vs State of J&K

Citation: 2023 LiveLaw (JKL) 304

The Jammu and Kashmir and Ladakh High Court held that when a set of employees is given a particular relief by a Court of law, all identically situated persons would need to be treated alike by extending the said benefits to them as well.

The court further clarified that the extension of such benefits would be irrespective of whether they approached the court during their active service or not.

Rigid Constraints Of Formal Pleadings Need Not Be Strictly Adhered To In A Claim Plea Under Motor Vehicles Act: J&K High Court

Case Title: The New India Assurance Co. Ltd Vs Safder Ali

Citation: 2023 LiveLaw (JKL) 305

Dismissing an appeal challenging an award passed by the Motor Accidents Claims Tribunal (MACT) under the Motor Vehicles Act, 1988 the Jammu and Kashmir and Ladakh High court reitrated that in a claim petition submitted under the Motor Vehicles Act, the rigid constraints of formal pleadings need not be strictly adhered to.

A bench of Justice Javed Iqbal Wani clarified that it is not mandatory for a claimant to explicitly enumerate all the details in the petition, hence allowing for a more flexible approach in presenting the case.

Merely Affixing Notice On Outer Building Not Substantial Compliance With Service Unless Credible Evidence Shown: J&K High Court

Case Title: Subash Choudhary Vs J&K Special Tribunal Jammu

Citation: 2023 LiveLaw (JKL) 306

The High Court of Jammu and Kashmir and Ladakh held that merely affixing a notice on the outer part of a building structure would not be substantial compliance with actual service under Section 7(2) of the J&K Control of Building Operations Act, 1988.

In allowing the plea, a single bench of Justice Javed Iqbal Wani held:

"No doubt Section 7(2) provides the mode of service of notice upon the violator by affixing the same on the outer door of some conspicuous part of the unauthorizedly raised building providing that such affixing of notice would be deemed to have been duly served upon the violator, yet mere affixing of notice on the outer conspicuous part of the building cannot said to be substantial compliance of the actual service of notice and thus the theory of communication of such a notice cannot, in law, be invoked unless it is by credible evidence shown that the notice was actually affixed at site.".

NEET PG | Special 'Stray Vacancy' Round Not For Upgradation, Only Meant For Candidates Who Were Not Allotted Any Seats: J&K High Court

Case Title: NADEEM UR REHMAN & OTHERS Vs UT OF J&K & OTHERS.

Citation: 2023 LiveLaw (JKL) 307

Clarifying the mandate of Stray Round in NEET PG counselling the Jammu and Kashmir and Ladakh High Court observed that the Special Stray Vacancy Round does not function as an upgradation round, and individuals who have already secured seats in prior rounds are ineligible for any upgradation opportunities.

In dismissing the review plea, a bench of Justice Sanjay Dhar added that the Special Stray Vacancy Round of counselling comes into play only when certain seats persistently remain unoccupied after the culmination of all preceding counselling rounds and is hence exclusively accessible to candidates who were not allotted any seats, either in the All India Quota or the State Quota.

Territorial Challenges Do Not Undermine Core Jurisdiction: J&K High Court Says Untimely Jurisdictional Objections Cannot Invalidate Decrees

Case Title: M/s Oikos India Pvt. Ltd Vs M/s K.C. Hotels Pvt. Ltd.

Citation: 2023 LiveLaw (JKL) 308

The Jammu and Kashmir and Ladakh High Court clarified that objections on territorial or pecuniary jurisdiction, if not raised at the appropriate juncture, cannot be subsequently introduced in proceedings.

In such instances, a decree rendered without timely jurisdictional objections was not deemed null and void since challenges related to the territorial or pecuniary jurisdiction were not considered foundational or striking at the Court's core of jurisdiction, Justice Rajesh Sekhri explained.

MV Act | Apportionment Of Compensation Not Guided by Personal Laws, Consideration Of Dependency On Deceased Paramount: J&K High Court

Case Title: Zareefa Banoo Vs Manzoor Ahmad Sheergujri

Citation: 2023 LiveLaw (JKL) 309

The Jammu and Kashmir and Ladakh High Court ruled that the Court cannot be guided by personal law while deciding on the compensation in a claim petition since it needed to be apportioned by taking into consideration the dependency of the Claimants.

Justice M.A Chowdhary clarified that only if any Claimant dies before being awarded compensation of his share, the same may be released among his legal heirs as per applicable laws of inheritance.

Domestic Violence Act Doesn't Provide Windfalls, Concrete Evidence Regarding Income Needed For Fair Assessment Of Maintenance: J&K High Court

Case Title: Mahroz Akhter Vs Dr Azmat Gouhar

Citation: 2023 LiveLaw (JKL) 310

The Jammu and Kashmir and Ladakh High Court has observed that concrete evidence regarding the salary amount of the husband must be made known to the trial court so that it can pass a direction for a specific amount of maintenance payable by the husband under the Domestic Violence Act.

Emphasising the need for concrete evidence of the husband's salary before quantifying maintenance, Justice Puneet Gupta observed,

"The court cannot pass in air the direction that the wife shall be entitled to 25% of the gross salary without knowing the actual salary of the husband. The trial court is required to have the income of the husband of the applicant-wife and then pass the order of maintenance as deemed fit in the light of the salary or other income of the husband”.

High Court Slams Kashmir Health Services Director With ₹2 Lakh Fine For 'Frivolous Litigation,' 20 Yr Delay In Executing Decree

Case Title: Director Health Services and Another Vs. Iqbal Ahmad Baqal

Citation: 2023 LiveLaw (JKL) 311

The Jammu and Kashmir High Court slapped a fine of Rs. 2 lakh on the Director Health Services Kashmir for indulging in frivolous litigation to stall the execution of a decree passed against them in 2003.

In a scathing order passed by Justice Atul Sreedharan, the court dismissed the plea, imposed costs, and observed that the department's "repeated frivolous litigation" had kept the decree-holder hanging for 20 years and amounted to "abuse of process".

Jammu & Kashmir High Court Quashes Detention Order of Journalist Asif Sultan Citing Procedural Lapses

Case Title: Asif Sultan Saida Vs Union Territory of J&K and anr.

Citation: 2023 LiveLaw (JKL) 312

The Jammu and Kashmir and Ladakh High Court quashed the detention order of journalist Asif Sultan, who was detained under the Public Safety Act (PSA) in April 2022.

The court, in its judgment delivered by Justice Vinod Chatterji Koul, observed that the detention order was illegal and unsustainable as the detaining authority failed to provide Sultan with all the relevant material on which the order was based. This, according to the court, violated Sultan's rights under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978.

J&K High Court Closes 'Vague' PIL Seeking CBI Probe Into Appointment Of 'Special Police Officers' In J&K Police

Case Title: Dr. Sandeep Mawa Vs U.T. of Jammu & Kashmir.

Citation: 2023 LiveLaw (JKL) 313

The Jammu and Kashmir and Ladakh High Court closed a Public Interest Litigation (PIL) seeking a Central Bureau of Investigation (CBI) probe into the appointment of Special Police Officers (SPOs) as Constables in the J&K Police Department between 2018 and 2020.

The bench comprising Chief Justice N. Kotiswar Singh and Justice Moksha Khajuria Kazmi observed that the petitioner's allegations were vague and lacked proper disclosure of credentials. Despite granting time on multiple occasions for filing a better affidavit, the petitioner failed to comply.

'Adequate Steps Taken': J&K High Court Closes PIL Concerning Contamination Of Tawi River In Jammu, Creation Of Artificial Lake

Case Title: Inderjeet Khajuria Vs State Of J&K

Citation: 2023 LiveLaw (JKL) 314

The Jammu and Kashmir and Ladakh High Court has closed a Public Interest Litigation (PIL) filed on the contamination of the Tawi River in Jammu and the creation of an artificial lake. The bench comprising Chief Justice N. Kotiswar Singh and Justice Moksha Khajuria Kazmi said that enough adequate steps have already been taken by the respondents and, therefore, there is no reason to further monitor the case.

'Gap Of 3.5 Yrs Between Last 'Illegal' Activity & Detention Order': J&K High Court Quashes Detention Of Alleged Bovine Smuggler

Case Title: Bari Shah Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 315

The Jammu and Kashmir and Ladakh High Court has quashed the detention order of a man accused of bovine smuggling, citing a lack of live link between his alleged past activities and the present detention, and a long delay of over three and a half years in passing the order.

Justice Rajnesh Oswal also acknowledged the Detenue's willingness to furnish an undertaking with the District Magistrate of Rajouri, assuring that he would not indulge in any bovine smuggling activity in the future.

J&K High Court Quashes FIR For Offence of Triple Talaq Owing To Compromise Between Parties

Case Title: Jamsheed Haroon and Another

Citation: 2023 LiveLaw (JKL) 316

Upholding the power of compromise in matrimonial disputes, the Jammu & Kashmir High Court has quashed an FIR filed under the Muslim Women (Protection of Rights on Marriage) Act, 2019, for the offence of triple talaq. Justice Sindhu Sharma, in a nuanced order, recognised the settlement reached between the couple and the potential for further injustice if the criminal proceedings continued.

“In view of the fact that the parties have mutually settled the dispute and to discharge/ release the parties from this dilemma, there is no reason to keep the FIR pending between the parties”, Justice Sharma recorded.

Res Judicata| Contempt Court Sole Authority To Rule On Judgment Adherence, Subsequent Litigation On Same Issue Impermissible: J&K High Court

Case Title: SMT. RANJEET KOUR Vs. STATE OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 317

The High Court of Jammu and Kashmir and Ladakh determined that the Contempt Court possesses the authority to adjudicate on whether a judgment of the Court has been adhered to. Once the Contempt Court has rendered a decision on the merits of such a question, it is not permissible for a party to reintroduce the same issue in a subsequent lawsuit or any other proceeding.

A bench of Justice Sanjay Dhar has observed,

“The Contempt Court is competent to decide an issue as to whether or not judgment of the Court has been complied with and once such a question has been decided on merits by the Contempt Court, it would not be open to a party to raise the same issue in a subsequent suit or any other proceeding as the same would be barred under Section 11 read with Explanation (VIII) of the Civil Procedure Code”.

J&K High Court Directs UOI To Pay 2.5 Crores As Rental Compensation To Displaced Persons Whose Land Was 'Illegally' Occupied By Indian Army

Case Title: S. Saroop Singh Vs Union of India through Defence Secretary.

Citation: 2023 LiveLaw (JKL) 318

Upholding the Constitutionality of property rights, the Jammu and Kashmir and Ladakh High Court directed the Union of India to pay a staggering Rs. 2.49 crore in rental compensation to 24 families of Displaced Persons (DPs) whose land was illegally occupied by the Army for over four decades.

A bench of Justice Wasim Sadiq Nargal observed,

“The state in exercise of its power of “Eminent Domain‟ may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and therefore, reasonable compensation must be paid. In a democratic polity governed by the rule of law, the Union of India could not have deprived the petitioners of their property without the sanction of law and it is obligatory on part of the Union to comply with the procedure for acquisition, requisition or any other permissible statutory mode”.

Maternity Leave Doesn't Result Or Reduction In Total Service Rendered: J&K High Court Upholds 6 Bankers' Promotion Rights

Case Title: Shafakat Vs Jammu and Kashmir Bank through its Chairman.

Citation: 2023 LiveLaw (JKL) 319

The Jammu and Kashmir and Ladakh High Court ruled that while on an approved leave of any nature, whether maternity leave or otherwise, any employee is to be considered as being in active service.

Justice Sanjeev Kumar clarified that the act of taking leave, irrespective of its kind, does not constitute a break in service nor does it lead to a reduction in the overall length of service rendered by the employee by the duration of the leave taken.

'Can't Stall Public Importance Projects Halfway': J&K High Court Upholds Sanitation Contracts To Sulabh Int'l Society Sans Inviting Tenders

Case Title: Sulabh International Social Service Organization Vs Saral Sugam Sewa Society

Citation: 2023 LiveLaw (JKL) 320

The Jammu & Kashmir and Ladakh High Court upheld the allotment of sanitation contracts to a renowned NGO, Sulabh International Social Service Organization (SISSO), without inviting tenders.

A division bench of Justices Tashi Rabstan and Rahul Bharti has observed that the allotment of contracts is not always bound by a tendering process and can be granted through negotiations, considering the organisation's attributes and qualifications.

Unexplained Delay In Detention Order Execution Raises Doubt On Detaining Authority's Subjective Satisfaction: J&K High Court

Case Title: OWAIS SYED KHAN Vs UT OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 321

Upholding basic rights and safeguards against arbitrary detention, the Jammu and Kashmir and Ladakh High Court quashed a detention order of a detenue citing an unexplained delay in executing the order as casting doubt on the detaining authority's genuine concerns.

Allowing a Habeas Corpus petition Justice Sanjay Dhar observed,

“When there is an unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detinue”.

Necessary To Read S. 37 NDPS Act Subject To Fundamental Right To Life & Liberty Guaranteed U/Article 21: J&K High Court

Case Title: Bashir Ahmad Bhat Vs Union Territory of Jammu and Kashmir

Citation: 2023 LiveLaw (JKL) 322

In a delicate balancing act, the Jammu and Kashmir and Ladakh High Court upheld the stringent bail restrictions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, but crucially acknowledged the fundamental right to a speedy trial enshrined in Article 21 of the Constitution.

Emphasising the necessity to interpret Section 37 of the NDPS Act in harmony with the fundamental right to life and liberty guaranteed under Article 21 of the Constitution, Justice Sanjeev Kumar referenced Mohammad Muslim @ Hussain v. State (NCT of Delhi), reported as 2023 and observed,

“..With a view to save the constitutionality of Section 37 of the NDPS Act, it is necessary to read Section 37 of the NDPS Act subject to the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India”.

'No Vested Right To Continue': J&K High Court Denies Relief To Contractual Doctor Seeking Service Extension Post COVID Hospitals Closure

Case Title: Aabid Rashid Vs Union Territory of Jammu And Kashmir

Citation: 2023 LiveLaw (JKL) 323

The Jammu and Kashmir and Ladakh High Court ruled against a petition filed by 116 doctors and medical staff who sought to continue their services at temporary Covid hospitals even after they were closed down.

Dismissing their plea for seeking an extension of their services Justice MA Chowdhary observed,

“The contractual employment has no vested right to continue and it is not open for the Courts to direct an employer to continue the contract or to change the status of the contractual employment in any manner, once the same has been accepted by consent of both the sides without any demur”.

Can't Convict Drug Manufacturer Twice For Same Violation Even If Substandard Drug Samples Lifted From Different Places: J&K High Court

Case Title: Kumar Wanchoo Vs Drug Inspector Manufacturing, Kashmir Division,

Citation: 2023 LiveLaw (JKL) 324

Delivering a sigh of relief for a pharmaceutical company caught in the double-bind of double jeopardy, the Jammu and Kashmir and Ladakh High Court said that the mandate of Section 300 of CrPC read with Article 20 (2) of the Constitution of India clearly instructs that person once convicted or acquitted for the commission of offence cannot be tried subsequently for the same offence.

Payment of Compound Interest Under MSMED Act Supersedes All Agreements And Laws: J&K High Court

Case Title: Union Territory of J&K V/s Northern Transformers

Citation: 2023 LiveLaw (JKL) 325

Underscoring the statutory nature of compound interest under Section 16 of the MSMED Act, the Jammu and Kashmir and Ladakh High Court ruled that the payment of compound interest under this section is mandatory and the same supersedes any conflicting terms in contracts or existing laws.

A bench of Justice Sanjeev Kumar observed,

“This condition of payment of compound interest on failure of the buyer to make the payment on the date it becomes due, is statutory in character and overrides any stipulation in the agreement made between the buyer and the supplier. It also overrides any such stipulation with regard to interest made in any law for the time being in force”.

S. 22 POCSO Act| Child Can't Be Prosecuted For Perjury For False Allegations Of Rape: J&K High Court

Case Title: UT of J&K Vs X

Citation: 2023 LiveLaw (JKL) 326

Emphasising the protection of minors in cases involving false allegations of rape the Jammu and Kashmir and Ladakh High Court held that a minor cannot be prosecuted for perjury for making false allegations of rape.

Citing Section 22 of the Protection of Children from Sexual Offences Act (POCSO) Act, protecting children from punishment for false information Justice Rajesh Oswal observed,

“A perusal of the Section 22(2) of the Protection of Children from Sexual Offences Act would reveal that if a false complaint has been made or false information has been provided by a child, no punishment shall be imposed upon such child”.

Contractual Employees Can't Be Terminated Without A Fair Hearing When Dismissal Order Is Stigmatic: J&K High Court

Case Title: Feroz Ahmed Sheikh Vs Union Territory of J&K

Citation: 2023 LiveLaw (JKL) 327

The Jammu and Kashmir and Ladakh High Court ruled that even contractual appointments cannot be terminated without affording an opportunity for a hearing if the termination is based on allegations of misconduct that cast a stigma on the employee.

Addressing the disengagement of employees from the J&K Handicrafts Corporation Justice M A Chowdhary observed,

“If an order is founded on allegations, the order is stigmatic and punitive and services of an employee cannot be dispensed with without affording him an opportunity of defending the accusations/allegations made against him in a full-fledged inquiry”.

'Sufficient Cause' In Limitation Act Can't Be Liberally Construed For Govt Departments : J&K High Court

Case Title: Union of India Vs Jagjeet Kour.

Citation: 2023 LiveLaw (JKL) 328

The Jammu and Kashmir and Ladakh High Court held that the expression "sufficient cause" in Section 5 of the Limitation Act cannot be liberally construed just because a government department is seeking condonation of delay.

The court emphasized that government departments are equally bound by the law of limitation and must provide cogent and plausible explanations for delays.

Justice Javed Iqbal Wani made these observations while dismissing an application seeking condonation of a 65-day delay in filing a review petition by the Union of India.

Appeals, Second Appeals & Suits Connected By An Intrinsic Unity, To Be Regarded As One Legal Proceeding: J&K High Court

Case Title: University of Kashmir through Registrar V/s Prof. Gh. Nabi Sidiqi and Ors.

Citation: 2023 LiveLaw (JKL) 329

Underscoring the interrelated nature of legal remedies, the Jammu and Kashmir and Ladakh High Court reiterated that appeals are not separate proceedings but rather continuations of the original suits.

Justice Javed Iqbal Wani, delivering the judgment, emphasized that appeals, second appeals, and suits are interconnected steps in a unified legal pursuit of justice. Hence an appellate Court possesses the same powers and discharges the same duties as that of the original Court, entitling the appellate Court to review the evidence as a whole subject to statutory limitations, if any, and to come to its own conclusions, he added.

No Binding Contract in Tender Participation, Process Cancellable Before Acceptance Letter Is Issued: J&K High Court

Case Title: Ghulam Qadir Bhat and another V/s U.T of J&K and others

Citation: 2023 LiveLaw (JKL) 330

Upholding the cancellation of a controversial sheep/goat procurement tender by the Sheep Husbandry Department, the Jammu and Kashmir and Ladakh High Court ruled that merely by participating in the tender, no right is created in favour of the bidder and the tenderer cannot be precluded from its option to cancel the tendering process on any grounds.

A bench of Justice Sindhu Sharma has further clarified that the tendering process, thus, can be cancelled at any stage before finalisation and issuance of a letter of acceptance as there was no concluded contract between the parties.