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Jammu & Kashmir & Ladakh High Court: Important Judgments Of 2022
Basit Amin Makhdoomi
24 Dec 2022 2:20 PM IST
As the end of year 2022 is nearing, LiveLaw brings to you a bunch of important Cases from the Jammu and Kashmir and Ladakh High Court. This roundup includes 250+ important orders and judgments.1) "Right To Property A Constitutional Right": J&K&L High Court Orders 10 Lakh Compensation In 'Illegal' Deprivation Of Land Case Case Title: - Krishan Singh and another v. State...
As the end of year 2022 is nearing, LiveLaw brings to you a bunch of important Cases from the Jammu and Kashmir and Ladakh High Court. This roundup includes 250+ important orders and judgments.
Case Title: - Krishan Singh and another v. State and others
Citation: 2022 LiveLaw (JKL) 1
Underscoring that the Right To Property is a Constitutional Right that has been acknowledged to be akin to a fundamental right and a basic human right, the Jammu and Kashmir and Ladakh High Court directed the J&K Government to pay 10 Lakh as compensation to the petitioners in a case of illegal deprivation of land.
Ordering thus, the Bench of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani further stressed that no one can be deprived of his property without following the procedure prescribed in law and payment of adequate compensation.
Case Title: Parvaiz Ahmad Bhat Vs Fida Mohd Ayoub
Citation: 2022 LiveLaw (JKL) 2
The Jammu and Kashmir and Ladakh High Court held that the dishonor of a cheque for the reason that there were incomplete signatures appearing on the cheque, constitutes an offence under Section 138 of the Negotiable Instruments Act.
Case Title: Villagers Of Kalni Bagh Baramulla Vs Ut of J&K
Citation: 2022 LiveLaw (JKL) 3
The Jammu & Kashmir and Ladakh High Court has held that the State cannot be permitted to acquire private lands without paying full compensation to affected people for a very long period of time. While coming down heavily upon the lackadaisical behaviour of the State, a Division Bench comprising Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed,
"It is an alarming situation that State is acquiring private land without payment of full compensation. This kind of action or omission on the part of the State authorities is not acceptable and cannot be allowed to continue for an indefinite period. We deprecate such practice and expect that the State would henceforth take all possible measures to ensure passing of an award within a reasonable time and payment of fair compensation to the persons interested where ever the land is acquired."
4) Post-Mortem Report Can't Be Sole Basis For Conviction In Absence of Incriminating Legal Proof: High Court of Jammu & Kashmir & Ladakh
Case Title: State of J&K Vs Swarn Singh
Citation: 2022 LiveLaw (JKL) 4
The Jammu and Kashmir High Court recently dismissed a criminal acquittal appeal, noting that the evidence of post-mortem report by no stretch of imagination can be made the sole basis for the conviction of the accused in the absence of legal proof against them.
A Division Bench of Justices Mohan Lal and Sanjeev Kumar held,
"In a criminal trial, it is the duty of the Court to ensure that mere conjectures or suspicion do not take the place of legal proof. Suspicion, however strong or probable it may be, is not a substitute for the legal proof required to substantiate the charges against the accused for commission of crime. It would be a travesty of justice to rely upon the suspicion/conjectures as adduced by the prosecution in a criminal case as the case in hand. From the prosecution witness, it is not clearly established that deceased was killed by the accused persons."
Case Title: Tek Chand Vs UT Of J&K
Citation: 2022 LiveLaw (JKL) 5
The Jammu and Kashmir and Ladakh High Court recently rejected a Public Interest Litigation (PIL) plea seeking prohibition on the illegal practice of slaughtering of animals on the basis of superstition and in the name of religious sacrifices.
With this, the Bench of Chief Justice Pankaj Mithal and Justice Sindhu Sharma also noted that ordinarily, the Courts are always slow in interfering in religious matters or with sentiments based upon religion or on the practice of any community.
Case title - Ashok Kumar v. Union Territory of Jammu and Kashmir
Case citation: 2022 LiveLaw (JKL) 6
The Jammu and Kashmir and Ladakh High Court has recently observed that a promise to marry, whereby two adults engaged in a physical sexual relationship is a case of courtship and love affair, and by no stretch of the imagination would it come within the definition of Section 375 of IPC [Rape].
The Bench of Justice Mohan Lal further ruled that only when there is a case of a false promise made with the purpose of obtaining the consent of a woman for sexual favor, the same amounts to misrepresentation and consent so obtained, cannot exonerate a person from criminal liability for the commission of rape.
Case title - Farhat Mir v. Union Territory of J&K and another
Case Citation: 2022 LiveLaw (JKL) 7
While upholding a detention order, the Jammu and Kashmir and Ladakh High Court recently observed that our Constitution guarantees various freedoms and personal liberty to all persons in our Republic, however, the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused. The Court was also of the view that Preventive detention is based on suspicion or anticipation and not on proof.
The Bench of Justice Tashi Rabstan observed thus while upholding the detention order passed against one Farhat Mir preventive detention to prevent the detenu from smuggling timber and has been directed to be lodged in Central Jail, Kotebhulwal, Jammu.
Case title - Oriental Insurance Co. Ltd. v. Narinder Kumar and another
Case Citation: 2022 LiveLaw (JKL) 8
The Jammu and Kashmir and Ladakh High Court dismissed an appeal moved by an Insurance company wherein it had challenged the award made by Motor Accidents Claim Tribunal on the ground that the offending vehicle was being driven by the driver, who was not holding a valid driving licence.
The Bench of Justice Rajnesh Oswal observed that since the appellant-Insurance Company had not pleaded anything with regard to the validity of the licence in its objections before the tribunal and therefore, the same cannot be allowed to be raised in the appeal.
9) To Classify Detenue As 'Notorious Stone Pelter' Not Sufficient To Invoke Preventive Detention Powers: J&K&L High Court
Case Title - Shabir Ahmad Malik v. Union Territory of J&K and another
Case Citation: 2022 LiveLaw (JKL) 9
The Jammu and Kashmir and Ladakh High Court quashed a detention order passed against one Shabir Ahmad Malik as it noted that to classify the detenu as a 'notorious stone pelter' cannot be sufficient to invoke the statutory powers of the preventive detention.
Having perused the grounds of detention, the Bench of Justice Tashi Rabstan found no cogent explanation as regards the live-link between the prejudicial activities of the Detenue and the purpose of detention and as a result whereof, the impugned order of detention was quashed.
10) Presumption U/S 29 POCSO Act Comes Into Play Even At Pre Trial Stage: Jammu & Kashmir & Ladakh High Court
Case title - Mubarak Ali Wani v. Union Territory through Police Station
Case Citation: 2022 LiveLaw (JKL) 10
The Jammu and Kashmir and Ladakh High Court has observed that presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) comes into play even at the pre-trial stage
Court, while dismissing the instant bail plea, remarked thus:
"Perusal of the record tends to show that there is material on record prima-faciesuggesting involvement of the petitioner in the alleged offences and having regard to the principles and propositions of law laid down by the Apex court on the subject of bail as noticed above, particularly keeping in view the nature of accusation, severity of punishment so on and so forth, the petitioner is held not entitled to bail at this stage."
Case title - Abdullah Danish Shervani v. UT of J&K and Anr.
Case Citation: 2022 LiveLaw (JKL) 11
Quashing an FIR under Section 498A of Ranbir Penal Code [offence of cruelty], the Jammu and Kashmir and Ladakh High Court observed that it would amount to extreme injustice if despite settlement having been arrived at by the parties, the criminal proceedings are allowed to continue.
The Bench of Justice Sanjay Dhar further observed that refusing to quash an FIR in such a case would amount to frittering away of the fruits of compromise that has been arrived at between the parties.
Case title - Mohammad Tuyyab Malik and Another petitioner present in person v. Union Territory of J&K
Case citation: 2022 LiveLaw (JKL) 12
The Jammu and Kashmir and Ladakh High Court directed the Chief Secretary of the Union Territory of J&K to take a decision over the establishment of an RTI portal for the UT of J&K within the period of 90 days.
The Bench of Chief Justice Pankaj Mithal and Justice Sindhu Sharma issued this order on a Public Interest Litigation (PIL) plea filed by Mohammad Tuyyab Malik & Mohammad Khurram Qureshi seeking the court's direction to the government for establishing an online portal for RTI.
Case Title: Tariq Ahmed v. Union Territory of J & K & Ors.
Citation; 2022 LiveLaw (JKL) 13
The Jammu & Kashmir & Ladakh High Court has clarified that a detenue has right to be informed about the 'time-limit' within which he is required to make representation against his detention.
A Single Judge Bench of Justice M.A. Chowdhary further held that non-compliance of the aforesaid requirement is a procedural irregularity, on the basis of which detention may be quashed. The Court observed,
"This is another reason, as to why the impugned order would be vitiated since the detenue's right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to it i.e., till the approval of the detention order by the State Government."
Case title - KHURSHID AHMAD DAR v. UNION TERRITORY OF J&K
Citation: 2022 LiveLaw (JKL) 14
The Jammu and Kashmir and Ladakh High Court has observed that the Courts cannot make a declaration that a particular drug is a 'manufactured drug' or a 'psychotropic substance' under the NDPS Act.
The Bench of Justice Sanjay Dhar observed thus as it and that this is the job of the Government to take decisions over including a particular drug in the list of 'manufactured drugs' or 'psychotropic substances' under the NDPS Act.
Case title: SHAHID AHMAD SHEIKH v. UNION TERRITORY OF J&K
Citation: 2022 LiveLaw (JKL) 15
The Jammu and Kashmir and Ladakh High Court observed that while considering a bail application, the Court has to attach a presumption of correctness to the statement of a witness recorded during the investigation of the case, particularly when the said statement has been recorded by a Judicial Magistrate.
The Bench of Justice Sanjay Dhar observed thus as it denied anticipatory bail to a rape accused as it further noted that he had been avoiding his arrest, dodging the investigating agency and did not make himself available before the investigating agency for the probe.
Case title: Union Territory Of J&K through Anticorruption Bureau v. Sonaullah Ahanger and Ors
Citation: 2022 LiveLaw (JKL) 16
The Jammu and Kashmir and Ladakh High Court observed that in a trial relating to offence under the Prevention of Corruption Act, an Investigating Officer is a material witness.
The Bench of Justice Sanjay Dhar observed thus while hearing a plea moved by the Union Territory Of J&K challenging an order of the Special Judge Anti-corruption, Anantnag passed in a trial under the Prevention of Corruption Act closing the prosecution evidence.
Case title - Rajesh Dogra @ Mohan Cheer v. UT of J & K & Ors.
Citation: 2022 LiveLaw (JKL) 17
The Jammu and Kashmir and Ladakh High Court quashed the detention order passed against Rajesh Dogra, the prime convict in the murder case of 'Don' Sanjay Kumar alias 'Bakra'- the case that rocked Jammu in the year 2006.
The Bench of Justice M. A. Chowdhary noted that the detention order dated November 29, 2021 [passed under the Jammu & Kashmir Public Safety Act, 1978], relied upon 7 FIR against Dogra, however, only one among those 7 FIRs had been registered in the year 2020, and the rest were lodged upto the year 2006.
Case title - State through P/S Vok v. Dr. Fayaz Ahmad Banday & others [Ref(Crl)No.01/2022]
Case citation: 2022 LiveLaw (JKL) 18
Jammu and Kashmir and Ladakh High Court observed that the case of an accused, though not insane, but who cannot be made to understand the proceedings, can be referred to the High Court under section 341 of Jammu and Kashmir CrPC only after the trial has resulted into his/her conviction.
Case title - KAISER AHMAD SHEIKH & Anr v. SHO P/S CRIME BRANCH KASHMIR along with connected matter
Case Citation: 2022 LiveLaw (JKL) 19
The Jammu and Kashmir and Ladakh High Court has clarified that the bank account of any of the relations of an accused (of an offence being probed into) falls within the definition of property under Section 102 CrPC.
The Bench of Justice Sanjay Dhar further observed that a police officer, during the course of the investigation, can seize or prohibit the operation of the said account of the relatives of the accused, if such assets have direct links with the commission of the offence, which the police officer is investigating into.
Case Title: Anil Singh V/s UT of J&K and another
Citation: 2022 LiveLaw (JKL) 20
The Jammu & Kashmir and Ladakh High Court quashed a detention order passed by a District Magistrate, Samba while observing that the order was passed without keeping in mind the constitutional safeguards.
Justice Sindhu Sharma observed:
"The respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. This petition is, accordingly, allowed and impugned detention order No. 03/PSA of 2021 dated 16.06.2021 passed by District Magistrate, Samba is quashed. The detenu is directed to be released from preventive custody forthwith, if he is not required in connection with any other case."
21) Court Can't Decide On Need For Constructing New Highways, Purely Policy Decision: J&K&L High Court
Case Title: Ashok Kumar and others v/s Union Territory of J and K and others
Citation: 2022 LiveLaw (JKL) 21
The Jammu and Kashmir High Court dismissed a petition which challenged government land acquisition on ground that there is no need for constructing a new national highway as there already exists a highway which can be repaired and widened.
The petition was dismissed by a division bench of Justice Moksha Khajuria Kazmi and Justice Pankaj Mithal observing:
"The submission that there is no need for constructing a new national highway as there already exists a highway which can be repaired and widened, it may be pertinent to mention that the construction of a national highway is a policy decision, which is taken on the opinion of the experts. It is not for this Court to intervene in such matters on the simple saying of the petitioners that such road or a highway is not needed."
Case Title: Rovinder Singh V/s Union of India and others
Citation: 2022 LiveLaw (JKL) 22
Jammu and Kashmir High Court declared Rule 129 of Border Security Rules ultra vires the Constitution of India while observing that the parliament cannot curtail the Fundamental Rights of the Armed Forces unless it is required to ensure proper discharge of their duties.
Justice Sanjeev Kumar observed that after a bare reading of the Rule it doesn't seem that it is aimed to ensure proper discharge of duties by the members of the Border Security Force and maintenance of discipline among them and, therefore, could be saved on the strength of Article 33 of the Constitution of India.
Case Title: Javid Ahmad Mir Versus UT of J&K and another
Citation: 2022 LiveLaw (JKL) 23
The Jammu and Kashmir High Court set aside a detention order while differentiating between disturbance in public order and threat to security of State.
The order was passed by Justice Vinod Chatterji Koul who said that an act may affect public order, but not necessarily the security of the State:
"Every infraction of law must necessarily affect order, but an affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping in the same that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and security of the State."
Case Title: Mushtaq Ahmad Peer V/s University of Kashmir and others
Citation: 2022 LiveLaw (JKL) 24
Jammu & Kashmir and Ladakh High Court upheld an order where a person's pension was withdrawn by way of an order without affording him an opportunity of being heard.
Case Title: MUSHTAQ AHMAD AHANGAR Vs. UNION TERRITORY OF J&K & ANR.
Citation: 2022 LiveLaw (JKL) 25
The Jammu and Kashmir and Ladakh High Court observed that preventive detention orders can be passed even when a person is in police/ judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded.
Justice Sanjay Dhar observed:
"It is trite law that the preventive detention orders can be passed even when a person is in police/judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law."
Case Title: MOHAMMAD HANIEF BHAT Vs. UT OF J&K & ANR
Citation: 2022 LiveLaw (JKL) 26
Jammu and Kashmir High Court quashed a preventive detention order declaring it to be illegal on ground that all important documents related to the matter were not provided to the detenue.
Justice Sanjay Dhar observed:
"Contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record."
Case Title : Adil Farooq Mir v State of J&K and others
Citation: 2022 LiveLaw (JKL) 27
The Jammu and Kashmir High Court released a detained person while observing that it is necessary to supply documents related to detention to the detenues while adding that refusing such documents and thereby keeping them in the dark was illegal and a violation of their constitutional right.
Case Title: Muzaffar Ahmad Dar v Commissioner Secretary and Ors.
Citation: 2022 LiveLaw (JKL) 28
The High Court of Jammu and Kashmir reprimanded a party for challenging an order that is the subject matter of challenge in some other court.
Justice Sanjeev Kumar observed:
"This Court is at loss to understand as to how the petitioner could dare to challenge the same order before this court. Nobody is permitted under law to pursue two remedies simultaneously. The writ petition of the petitioner, in so far as it throws challenge to the order dated 06.10.2018, is grossly misconceived and deserves to be dismissed."
Case Title: STATE BANK OF INDIA ANANTNAG v. G. M. JAMSHEED DAR
Citation: 2022 LiveLaw (JKL) 29
The Jammu and Kashmir and Ladakh High Court observed that there is no need to obtain the previous sanction to prosecute bank officials in connection with offences under IPC/RPC.
The Bench of Justice Sanjay Dhar also observed that the appointing and removing the authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India that is empowered to do so and therefore, Section 197 of the CrPC [Prosecution of Judges and public servants] are not attracted to the case of bank officials.
Case Title: MOHAMMAD SHAHNAWAZ KHAN Vs. UT OF J&K & ORS.
Citation: 2022 LiveLaw (JKL) 30
The Jammu and Kashmir High Court quashed an FIR against a Station House Officer, accused for offences under Section 4-A of J&K Prevention of Corruption Act and Section 120-B RPC.
Justice Sanjay Dhar observed:
"It is a settled law that if allegations made in the FIR are not substantiated by the material assembled by the investigating agency during investigation of the case, the continuance of investigation/ prosecution in such matters amounts to abuse of process of law. Thus, this is a fit case where this Court should exercise its power under Section 482 of the Cr. P. C to quash the proceedings in the impugned FIR."
31) Preventive Detention Cannot Be Made By Stating Vague Grounds: Jammu And Kashmir High Court
Case Title: Arif Manzoor Sheikh Versus Government of J&K
Citation: 2022 LiveLaw (JKL) 31
The Jammu and Kashmir High Court quashed an order for detention while observing that detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified.
Case Title: Ghulam Mustafa & Anr. v. Union Territory of J&K
Citation: 2022 LiveLaw (JKL) 32
The Jammu and Kashmir and Ladakh High Court reiterated that as per the provision under Section 389 CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and his release on bail.
Justice Mohan Lal referred to the case of Bhagwan Rama Shinde Gosai & Ors v. State of Gujarat, where it was held that Section 389 CrPC does not contain any "statutory restriction" in the suspension of sentence and granting of bail to the accused/convict. It added that the prayer should be considered liberally, and the Appellate Court may impose restrictions considering the gravity of offence.
Case Title: Ghulam Mohd Bhat v. Narcotics Control Bureau
Citation: 2022 LiveLaw (JKL) 33
The Jammu and Kashmir and Ladakh High Court held that the officers of the Narcotics Control Bureau are police officers within the meaning of Section 25 of the Evidence Act. Having held so, Justice Mohan Lal noted that a confessional statement recorded under Section 67 of the NDPS Act would remain inadmissible in the trial for an offence under the NDPS Act.
Case Title: RANGE OFFICER KANDI RANGE SOPORE Vs. ALTAF HUSSAIN MALLA
Citation: 2022 LiveLaw (JKL) 34
The Jammu and Kashmir High Court upheld the revisional court's order that had set aside the order of the Authorized Officer of the Forest Division for seizure of an offending vehicle, while observing that both prosecution and accused parties need to be given opportunity to cross examine each other's witness.
Case Title: Waheed ur Rehman Parra V/s UT of J&K
Citation : 2022 LiveLaw (JKL) 35
The Jammu and Kashmir and Ladakh High Court recently allowed bail to a man who was booked under Unlawful Activities (Prevention) Act, 1967, merely because he was seen in the company of a member of a terrorist organization.
While granting bail, the Court observed that merely seeing him with a member of a terrorist organization is not enough to attract UAPA charges.
"It is, thus, clear that merely the accused having been seen in the company of a member of a terrorist organization without doing anything more is not enough to attract the applicability of UAPA Act. Keeping in view the totality of circumstances and the discussion made hereinabove, we are of the considered view that this appeal deserves to be allowed. Ordered accordingly."
36) Right To Get Cremated As Per Religious Obligations Guaranteed Under Article 21: J&K&L High Court
Case Title: Mohammad Latief Magrey V/s Union of India and ors
Citation: 2022 LiveLaw (JKL) 36
The Jammu and Kashmir High Court directed the Central government authorities to exhume the body of Amir Magrey, a person killed in the Hyderpora encounter last year.
While passing the aforesaid direction, Justice Sanjeev Kumar observed that the right to life as guaranteed by Article 21 extends to treat the dead body of a deceased person with respect.
"Without dilating much on the issue, it can be said to be well settled that right to life and liberty guaranteed to a citizen by Article 21 of the Constitution of India includes right of the citizen to live with human dignity and this right to live with human dignity even extends after death though in a limited extent. Viewed thus, the right of the petitioner to claim the dead body of his son for performing last rites in his own way and in accordance with local traditions, religious obligations and religious faith, which the deceased professed during his life time, cannot be disputed. But the question that needs to be addressed in the context of present controversy is whether the State can deny this right in the name of preventing law and order situation going out of hand."
Case Title: SANDEEP SINGH & ORS. Vs. NISAR AHMAD DAR
Citation: 2022 LiveLaw (JKL) 37
The Jammu and Kashmir High Court observed that vicarious liability cannot be attached to the office bearers of a company till impleadment of the company as an accused.
The observation came from Justice Sanjay Dhar:
"Each and every action of the petitioners was in their capacity as office bearers of the company and whatever they did, the same was done on behalf of the company. Even the money was received from the respondent/complainant in the account of the company. Thus, without impleading the company as an accused, the proceedings against the petitioners could not have been initiated. The learned Chief Judicial Magistrate has, therefore, erred in issuing process against the petitioners."
Case Title: Neelofar Rasool v/s Imtiyaz Ahmad Ahangar and others
Citation: 2022 LiveLaw (JKL) 38
High Court of Jammu and Kashmir and Ladakh while framing guidelines pertaining to 'protection officer' in Domestic Violence cases said, "It shall neither be the duty of the Protection Officer nor his/her domain to undertake any mediation/conciliation once a Magistrate is seized of a domestic violence case."
The Court said the protection officer is under statutory duty to assist the Magistrate in discharge of his functions under the Act and to carry out directions/orders passed by such Magistrate without making his own interpretation.
Case Title: NASIR AHMAD WANI & ORS. Vs. POLICE STATION NEEMUCH & ORS.
Citation : 2022 LiveLaw (JK) 39
The Jammu and Kashmir and Ladakh High Court, while hearing a plea seeking anticipatory bail under section 438 CrPC, ruled that it has no jurisdiction to grant anticipatory bail to a person against whom a case has been registered with a police station which is situated outside the local limits of its jurisdiction under the Code.
Case Title: Abdul Rehman Dar Vs. State of J&K & Anr
Citation : 2022 LiveLaw (JKL) 40
The High Court of Jammu & Kashmir and Ladakh reiterated that holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function.
Quashing an order issued by Secretary J&K State Board of School Education (BOSE) Srinagar against the petitioner, who was working as Senior Assistant in the Board, the court has observed that the penalty of withholding promotion of the petitioner from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental enquiry was conducted into the alleged misconduct.
Case Title : Riyaz Ahmad Mir V Union Territory of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 41
A bench of Justice M. A Chowdhary while quashing a detention order held that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, there must be compelling reasons for the detaining authority to do so. The detaining authority is bound to record the compelling reasons as to why the detenu could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law.
Case Title : Naik Bibhu Prasad v Union of India and others
Citation : 2022 LiveLaw (JKL) 42
The High Court of Jammu and Kashmir and Ladakh observed that there is no provision in the POCSO Act that bars the jurisdiction of Summary General Court Martial (SGCM) to try the offences mentioned thereunder.
Judge Rajnesh Oswal observed that
"There is no provision in the Act of 2012 that bars the jurisdiction of SGCM to try the offences under the Act of 2012. Rather section 42-A of Act of 2012 provides that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force and in case of any inconsistency only, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency.
Case Title : GHULAM RASOOL MUGHAL v GH. AHMAD HAJAM
Citation : 2022 LiveLaw (JKL) 43
The Jammu and Kashmir & Ladakh High Court held that the consequence of a criminal complaint being dismissed in default is acquittal of accused and the complainant has no other option but to avail statutory remedy against the same; he cannot seek restoration of the proceedings.
Holding thus, it quashed the order passed by a Munsiff Court, whereby the complaint under Section 138 of Negotiable Instruments Act was restored to its original number, on a restoration application filed by the complainant (respondent before the High Court).
Case Title: Farooq Ahmad Wani v. Abdul Khaliq
Citation: 2022 LiveLaw (JKL) 44
The Jammu and Kashmir and Ladakh High Court observed that provision of Section 395 CrPC for making a reference to the High Court cannot be invoked merely because the accused is not getting any proper legal assistance or that his counsel has been threatened.
Justice Pankaj Mithal observed:
"Reference can be made to the High Court by the Session Judge only in the following two contingencies: (a) Where in a pending case before the Session Court a question as to the validity of any provision of any Act, Ordinance or Regulation is involved or if any such provision in the opinion of the court is invalid or inoperative but has not been so declared by the High Court and the Supreme Court; and (b) Where any question of law arises for consideration."
Case Title : Shahnawaz Shah v High Court of JK and others
Citation: 2022 LiveLaw (JKL) 45
The Jammu and Kashmir and ladakh High Court quashed the termination order of an employee, working with subordinate judiciary in J&K, and held that unauthorized absence cannot and must not amount to "automatic cessation" of service, even if the delinquent is a probationer.
Case Title :Rouf Ahmad Mir Vs SSP And Anr
Citation: 2022 LiveLaw (JKL) 46
The Jammu and Kashmir and Ladakh High Court ruled that although Section 438 of the CrPC gives concurrent jurisdiction to High Court and Sessions Court to consider an anticipatory bail application of an accused yet, as a matter of ordinary practice, High Court does not entertain such applications unless the person apprehending arrest has exhausted the remedy before the Sessions Court or in case there exist exceptional circumstances.
Case Title : Ajay Kumar Agarwal v Union Territory of JK and Ors.
Citation: 2022 LiveLaw (JKL) 47
The Jammu and Kashmir and Ladakh High Court ruled that any documentary or oral evidence produced before the Investigating Officer (IO) during the course of investigation by any person including the accused- which is relevant, necessary or desirable for the purposes of investigation, cannot be thrown out by the IO by seeking shelter under Section 91 of the Code of Criminal Procedure (CrPC).
Case Title: Javid Ahmad Naik v State of J&K and ors
Citation: 2022 LiveLaw (JKL) 48
The Jammu and Kashmir and Ladakh High Court upheld the dismissal from service of a Munsiff, Javid Ahmad Naik, for conferring undue benefits on certain parties by enabling registration of their sale deeds without proper stamp duty, thereby causing monetary loss to the State Exchequer.
A Division bench of Chief Justice Pankaj Mithal and Justice Sanjeev Kumar observed,
"The allegations made in the complaint were prima facie found substantiated in the preliminary enquiry conducted by respondent No.3 and were subsequently proved when a regular enquiry was conducted by the Enquiry Officer who, it needs to be noticed, was none other than a Judge of this Court."
Case Title : Bhat Ab. Urban Bin I Aftaf & Ors. V UT of Jammu and Kashmir and others
Citation: 2022 LiveLaw (JKL) 49
The Jammu and Kashmir and Ladakh High Court ordered the Board of Professional Entrance Examination to grant Rs. 5 lakh compensation to a medical aspirant, who was denied a seat in NEET-MDS 2021, despite being eligible under the CDP/JKPM (Children of Defence Personal/ Military Forces) category.
Justice Sanjeev Kumar further directed BOPEE to keep one seat of MDS in the next session (2022) for the petitioner, without making it part of selection or admission.
Case Title : State of JK & Anr. V Danish Zia Bhat & Ors.
Citation: 2022 LiveLaw (JKL) 50
The Jammu and Kashmir and Ladakh High Court reiterated that no candidate from the waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate after joining against the said post.
Case Title: Arshid Ahmad Lone v. State of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 51
The Jammu and Kashmir High Court reiterated that a Government cannot amend or supersede statutory rules by administrative orders. It added that where the rules are silent on any particular point, the Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed.
Case Title: Shabir Ahmad Tatoo Vs UT Of J&K
Citation: 2022 LiveLaw (JKL) 52
The division bench of J&k&L High Court comprising Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani held "It is well recognized that Right to Property is a basic human right which is akin to a fundamental right as guaranteed by Article 300 A of the Constitution of India and that no one can be deprived of his property other than by following procedure prescribe in law."
CaseTitle: Anita Mehta vs Gulkand Hues &Ors
Citation: 2022 LiveLaw (JKL) 53
The Jammu and Kashmir and Ladakh High Court reiterated that non-filing of an application under Section 8 of the Arbitration and Conciliation Act would not mean that the petitioner has surrendered to the jurisdiction of the court and left the right to get the disputes resolved through arbitration so as to debar the petitioner for seeking appointment of an arbitrator through the intervention of the Court.
Case Title: UT of J&K Vs Mohammad Latief Magrey &Ors.
Citation : 2022 LiveLaw (JKL) 54
The Jammu and Kashmir and Ladakh High Court today directed the UT administration to allow the family of Amir Magrey, the fourth person killed in Hyderpora Encounter, to perform Fatiha Khawani (religious rituals/prayers after burial) at his grave.
The bench observed "the said right of burial and performance of last religious rituals of deceased available to the family members could not have been denied."
Case Title: Taja Begum & Ors Vs UT of J&k
Citation: 2022 LiveLaw (JKL) 55
The Jammu and Kashmir and Ladakh High Court made it clear that the presumption of innocence in favour of a juvenile under Section 3(i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be applied to the adult co-accused in a crime.
The bench of Justice Dhar rejected the contention raised by the Petitioners herein (co-accused with the juvenile) that since the main accused, being a juvenile, is to be presumed free of any malafide intent, the petitioners cannot be roped in by invoking the provisions contained in Section 34 of the IPC.
56) Judges Must Refrain From Making Derogatory Remarks Against Parties Unless Absolutely Necessary For Deciding Case: J&K&L High Court
Case Title: Sunny Gupta v Union Territory of J&K and ors
Citation: 2022 LiveLaw (JKL) 56
Justice Mohan Lal of J&k&L High Court ruled that Judges hold a "powerful seat" which must not be misused by indulging in intemperate comments, undignified banter or scathing criticism. "It is the general principle of highest importance to the proper administration of justice that derogatory remarks are not to be made against persons unless absolutely necessary for decision of the case to animadvert on their conduct."
Case Title: Eapen Chakoo Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 57
J&K&L High Court held that a party cannot approach the High Court under Section 482 of the CrPC at his whim and caprice merely because no period of limitation in filing the petition under the aforesaid provision is provided. A petition under Section 482 of the CrPC must be filed within a reasonable time and it should not be vitiated by inordinate delay and laches on the part of the petitioner, the bench comprising Justice Sanjay Dhar observed.
58) J&K&L High Court Directs Immediate Eviction Of Unauthorised Occupants Of Newly Constructed Quarters
Case Title: Vessu Welfare Committee and ors. v Relief & Rehabilitation Commissioner
Citation: 2022 LiveLaw (JKL) 58
The bench comprising Justice Sanjeev Kumar observed that "Such lawlessness, if permitted by Courts, will lead to chaos in the society which, in turn, would put the rule of law in peril. It is, thus necessary for the police power of the State to come heavily on those for whom the breach of law is like playing with a toy.
Case title - Amit Kumar Gupta v. UT of Jammu and Kashmir through SHO PS Mendhar
Case Citation: 2022 LiveLaw (JKL) 59
The Jammu and Kashmir and Ladakh High Court has observed that a person against whom a warrant who is absconding and evading the execution of a warrant, is not entitled to the concession of anticipatory bail.
The Bench of Justice Javed Iqbal Wani observed thus while denying pre-arrest bail to one Amit Kumar Gupta who has been booked for offences punishable under Section 304/34 IPC.
Case Title: Hanifa Deva and Others & Arshad Hussain and Others v Director
Citation: 2022 LiveLaw (JKL) 60
A bench of Justice Sanjeev Kumar held that the prescription of higher qualification for promotion to a superior post from a subordinate one is essentially for efficient discharge of duties of the said higher post and as a result, nothing prevents an employer to prescribe higher technical qualification for the purpose of promotion to the next higher post.
Case Title : Peerzada Rafiq Maqdoomi Vs. Union Territory of J&K
Citation: 2022 LiveLaw (JKL) 61
The Jammu and Kashmir and Ladakh High Court today held that the test to be applied while considering a plea for default bail in terms of Section 167(2) CrPC, in a case where charge sheet is laid with a stipulation that further investigation is to be conducted in terms of Section 173(8) CrPC, is that whether affirmative action of taking cognizance and consideration of charge / discharge can be taken, on the basis of the charge sheet laid.
Case Title: Ishfaq Ahmad Khan v. State of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 62
A bench comprising Justice M A chaudhary observed repeated sexual activity on a 9 year old child is not possible without any injury in the vaginal /genital area.
The Court also noted that though accused could be held guilty for the commission of offence of rape based on the solitary evidence of the prosecutrix, howeever the same must inspire confidence and should appear to be absolutely trustworthy, unblemished and should be of sterling quality.
Case Title: Kamaljeet Singh Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 63
A single bench of Justice Rajnesh Oswal held that a detention order passed by a competent authority under Sec 8(1) of J&K Public Safety Act on the ground of disturbance of law & order situation is not sustainable in law as the said provision clearly prescribes "prejudicial to Public order" as a ground to issue detention orders.
The bench further observed that a person may be detained under preventive detention laws provided the case falls within the parameters of law laid down under the Act and the perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commission of offences those do not fall within the realm of "public order" as defined by section 8(3) of the Act.
64) Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court
Case Title: Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors
Citation: 2022 LiveLaw (JKL) 64
The court held that the right to seek judicial review is a vital right conferred by the Constitution and any terms and conditions of employment, which restrain a person to seek legal remedies for enforcement of his rights, are null and void. employer cannot impose such conditions of employment which have the effect of taking away the right of its employees to seek judicial review of the actions of the employer, the bench of Justice Sanjeev Kumar underscored.
65) Pre-Condition Of Filing Complaint U/S 138 NI Act Not Fulfilled When Statutory Notice Of Demand Sent On Wrong Address: J&K&L High Court
Case Title: Engineering Control Vs. Banday Infratech Pvt. Ltd
Citation: 2022 LiveLaw(JKL) 65
A bench of Sanjay Dhar ruled The Jammu and Kashmir and Ladakh High Court ruled that an inference of having received the statutory notice of demand by a drawer of a cheque as mandated under Section 138 of Negotiable Instrument Act can be raised only if the notice has been dispatched to his correct address. Such an inference cannot be drawn if the notice has been sent on the incorrect address of the drawer of the cheque, the court observed.
66) Sanction For Prosecuting Public Servant Under PC Act Is Denied, Prosecuting Agency Can't File Challan Under Other Penal Laws On Same Facts: J&K&L HC
Case Title: Sanjay Kumar Srivastava & Ors. Vs. Central Bureau Of Investigation
Citation: 2022 LiveLaw (JKL) 66
The Jammu and Kashmir and Ladakh High Court held that once the Central Vigilance Commission after examining the material on record reaches a conclusion that no criminal offence is made out against the accused public servant and the said opinion is accepted by the competent authority, it is not open to the investigating agency to file a challan on the same set of facts against the accused public servant by dropping the offences under the provisions of Prevention of Corruption Act and confining the challan only to the offences under other penal provisions.
67) Doctrine Of Ejusdem Generis Not Automatically Applicable To Restrict Words Used In Statute If Legislative Intent Is Clear: J&K&L High Court
Case Title: Waseem Qureshi vs UT of J&K
Citation: 2022 LiveLaw (JKL) 67
The Jammu and Kashmir and Ladakh High Court held that the doctrine of "ejusdem generis" cannot be made automatically applicable to restrict the words used in a statute if otherwise intention of the legislature is clear. It is only in cases where intention of the legislature is clear that the general terms shall not be given broader meaning than required, the aforesaid doctrine will have applicability, Justice Sanjay Dhar recorded.
68) High Court Directs NIT Srinagar To Pay Rs 5 Lacs Compensation Over Unjustifiable Delay In Appointing Candidates Selected As Jr. Engineers
Case Title: Faizan Amin and another V/s UOI and another
Citation: 2022 LiveLaw (JKL) 68
The bench comprising Justice Sanjeev Kumar took a strong note of the mushrooming growth in frivolous litigations and said: "To serve the cause of justice and to keep the stream of justice unsullied, it is imperative for the Courts to act tough and discourage the tendency of some litigants to misuse the process of law." The court also imposed Rs. 2 lacs cost on the two persons who were serving in NIT as Jr. Engineers on contractual basis for filing frivolous cases to stall the regular selection process.
69) Courts Can't Expand Scope Of Qualification Prescribed By Employer By Reading Into It A Higher Qualification: J&K&L High Court
Case Title: Qazi Gousia Jeelani V/s Mehraj Ud Din Najar
Citation: 2022 LiveLaw (JKL) 69
A division bench comprising Justices Sanjeev Kumar and M A Chaudhary ruled that a person, to be eligible for a post, must possess the qualification prescribed for the post and it is not within the province of the Courts of law to read the higher qualification into the qualification prescribed in the rules or the advertisement as essential qualification.
70) J&K&L High Court Orders Probe By Anti-Corruption Bureau Into Leakage Of PSA Detention Order Even Before Its Execution
Case Title: Mohammad Yousaf vs Union Territory of J&K and other
Citation: 2022 LiveLaw (JKL) 70
A bench of Justice Rajnesh Oswal observed The court further observed that it is at a loss as to understand how the order of detention landed in the hands of the petitioner or his brother without there being any execution of the said detention order. In view of the gravity of the act, the Court directed the Director, Anti-Corruption Bureau, Union Territory of J&K to enquire the issue with regard to the connivance of the officials of the respondents with regard to fact as to how these documents landed with the detenu or his brother without execution of the detention order.
71) In Absence Of Criteria To Break A Tie, Selection Committee May Adopt Its Own Yardstick In Consonance With Article 14: J&K&L High Court
Case Title: Suhail Ahmad Wani V/s SKIMS Medical College Hospital and ors
Citation: 2022 LiveLaw (JKL) 71
The Jammu and Kashmir and Ladakh High Court ruled that in cases of recruitment or drawing of seniority lists where there is neither any statutor y prescription, nor any executive instructions laying down any criteria or guidelines to be followed to break the tie, the only course that is left with a Court adjudicating such matter is to look to the fairness and rationality of the selection process as also the criteria that ought to have been possibly applied to break the tie.
The bench also observed that preferring a candidate having better merit in the academics but not being older in age cannot, by any stretch of reasoning, be said to be unfair, irrational or arbitrary.
72) Anticipatory Bail Plea Not Maintainable By Person Already Enlarged On Bail As He Is Under Constructive Custody: J&K&L High Court
Case Title: Zubair Ahmad Wani Vs. Government Of J&K
Citation: 2022 LiveLaw (JKL) 72
A bench comprising Justice Sanjay Dhar ruled that a person released on bail is already construed to be the in constructive custody and if the law requires him to come back to custody for specified reasons, the application for anticipatory bail will not lie. There cannot be an apprehension of arrest by a person already in the constructive of the law.
Dismissing the bail application the bench observed bench observed that the proper course for the petitioner was to surrender before the Sessions Court and apply for grant of regular bail because he had already been arrested and pursuant to grant of interim regular bail, he was in constructive custody of the law.
73) Simultaneous Prosecution Of Accused U/S 420 IPC & S.138 NI Act On Same Set Of Facts Not "Double Jeopardy": J&K&L High Court
Case Title: Fayaz Ahmad Sheikh Vs. Mushtaq Ahmad Khan
Citation: 2022 LiveLaw (JKL) 73
The Jammu and Kashmir and Ladakh High Court ruled that the test to ascertain and uphold the fundamental right against "double jeopardy", which isguaranteed under Article 20(2) of the Constitution, is that whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials.
74) Pulwama Terror Attack: J&K&L High Court Dismisses Accused' Appeal Claiming 'Plea Of Juvenility'
Case Title: Waiz-ul-Islam Vs Union Territory of J&K through NIA Jammu
Citation: 2022 LiveLaw (JKL) 74
The division bench comprising Justices Rajnesh Oswal and Mohan Lal observed that if an offence is constituted of several acts and when the accused is major at a time when subsequent act is committed forming part of an offence, he cannot claim to be juvenile. Thus, this court has no hesitation to hold that the appellant was more than 18 years of age and was not juvenile at time of commission of offence.
Case Title: Sanjeev Kumar vs Union Of India
Citation: 2022 LiveLaw (JKL) 75
The Jammu and Kashmir and Ladakh High Court today ruled that a temporary employee also stands protected under the provisions of Article 311 of the Constitution of India and cannot be terminated without conducting proper enquiry.
Observing that this court is within its powers to go beyond the orders the court held that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order.
Case Title: Ghulam Ahmad Naikoo vs Abdul Qayoom Wani.
Citation: 2022 LiveLaw (JKL) 76
A single bench of Justice Sanjay Dhar held a distinction has to be kept in mind between mere breach of contract and the offence of cheating and it depends upon the intention of the accused at time of inducement while the subsequent conduct is not the sole test.
Case Title: State of J&K through P/S Bandipora Vs Hilal Ahmad Parray
Citation: 2022 LiveLaw (JKL) 77
The Jammu and Kashmir and Ladakh High Court held that only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, can entertain and grant/refuse bail to a person accused of an offence under the provisions of Unlawful Activities Prevent Prevention Act. It further observed that a Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested wit with jurisdiction to try such offences or grant/refuse bail.
78) Suits Against Govt | Refusal Of Interim Relief After Grant Of Leave To File Suit Without Notice U/S 80 CPC Does Not Require Return Of Plaint: J&K&L High Court.
Case Title: Raisa Banoo vs Mst. Shameema & Ors
Citation: 2022 LiveLaw (JKL) 78
A bench of the Jammu and Kashmir and Ladakh High Court comprising Justice Vinod Chaterjee Koul held that in case the interim stay sought is not granted after the leave to file suit without issuing notice has been granted to the plaintiff under Section 80(3) of Civil Procedure Code, that does not mean that the plaint is to be returned on refusing to grant such injunction.
79) JJ Act | Enquiry U/S 15 By Juvenile Justice Board Not Mandatory Before Consideration & Grant Of Bail U/S 12: J&K&L High Cour
Case Title: Zubair Ahmad Teli Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 79
The Jammu and Kashmir and Ladakh High Court held that there is no requirement of prior consideration of the social investigation report by JJ Board while considering a bail plea under section 12 of the Juvenile Justice Care and Protection Act, as that was never intended by the legislature.
A bench comprising Justice MA Chaudhary observed: "The primary assessment of a child in conflict with law is for further purpose of trial i.e., as to whether he should be tried by the Juvenile Justice Board or by the Children's Court. It will not curtail the power of the Juvenile Justice Board to consider the application filed under Section 12 of the J.J.Act, 2015"
Case Title: Muzamil Butt Vs State Of J&K.
Citation: 2022 LiveLaw (JKL) 80
A bench of Justice Sanjay Dhar observed he freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the Country or its people. It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country."
81) Pending Matrimonial Litigation Between Parties In UAE Not Ground To Quash Cruelty FIR Against Husband In Srinagar: J&K&L High Court
Case Title: Rouf Majid Naqash Vs SHO P/S Womens Wing
Citation: 2022 LiveLaw (JKL) 81
The Jammu & Kashmir & Ladakh High Court ruled that the proceedings for divorce or restitution of conjugal rights are of civil nature whereas the purpose of lodging of an FIR is to set the criminal law into motion, which is aimed at punishing the erring husband for his acts of cruelty. Therefore, merely because matrimonial litigation between the parties is going on at Sharjah would not be a ground to quash the impugned FIR," Justice Sanjay Dhar observed.
82) Order 6 Rule 4 CPC Cannot Be Invoked To Effect An Amendment In Written Statement: J&K&L High Court
Case Title: Ghulam Hassan Khanyari Vs Reyaz Ahmad Bhat& Ors
Citation: 2022 LiveLaw (JKL) 82
The Jammu & Kashmir & Ladakh High Court recently ruled that an application filed under the provisions of Order VI Rule 4 of Civil Procedure Code has tto be specific in exemplifying the details about allegations of misrepresentation, fraud or wilful default and this provision cannot be enlarged to effect an amendment.
83) Charge-Sheet Even In The State Of Its Photostat Copies Cannot Be Termed As 'Incomplete' For Grant Of Default Bail: J&K&L High Court
Case Title : Vakil Ahmad Dar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 83
The Division bench of Jammu & Kashmir & Ladakh High Court held that a charge-sheet even in the form of its photostat copies when placed on record cannot be termed as incomplete charge-sheet for grant of default bail, for the reason that the original documents can be brought on record with the permission of the court and otherwise also their admissibility can be challenged during recording of evidence.
84) No Recovery Can Be Made From Pension If Employee's Promotion Was Not Based On Any Misrepresentation: J&K&L High Court
Case Title: Sonam Dolma Vs Bharat Sanchar Nigam Limited.
Citation: 2022 LiveLaw (JKL) 84
A division bench of J&K&L High Court ruled that in absence of any misrepresentation on the part of the petitioner with regard to factum of seeking her promotion, no recovery, whatsoever, can be made from her retirement benefit or for that matter her promotion cannot be withdrawn
85) Right To Property May No More Be A Fundamental Right, But Its Sanctity As Human Right Is Still Intact: J&K&L High Court
Case Title: Meenakshi Chohan &Ors Vs Jammu Municipal Corp & ors
Citation : 2022 LiveLaw (JKL) 85
The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human rig right in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived f his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law.
Case Title: Junaid Hassan Masoodi Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 86
The Jammu and Kashmir and Ladakh High Court ruled that in crimes pertaining to matrimonial disputes and dowry deaths the relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.
These allegations are required to be carefully scrutinized before initiation of prosecution against the relatives of the husband and there being no mention of the specific instances of cruelty alleged to have been committed by the relatives of the husband in the instant case, the prosecution against them cannot be sustained, the bench noted.
Case Title: Neena Gupta Vs UT of Ladakh
Citation: 2022 LiveLaw (JKL) 87
A bench of Justice Sanjay Dhar observed The Jammu and Kashmir and Ladakh High Court on Thursday held that a person, other than a manufacturer of a drug, cannot be held liable for contravention of Section 18 of the Drugs and Cosmetic Act if he shows that he has acquired the drug or cosmetic from a duly licensed manufacturer.
"Once it is shown from the material on record that the conditions mentioned in Section 19(3) of the Drugs and Cosmetics Act have been satisfied by the petitioners, they could not have been prosecuted by the respondent Drugs Inspector" the bench underscored.
Case Title: Anis Ahmad Chaudhary Vs State of J&K
Citation: 2022 LiveLaw (JKL) 88
The Jammu and Kashmir and Ladakh High Court ruled that merely because elaborate reasons have not been given in the entrustment orders pass ed by the Superintendent of Police to delegate investigation to an inspector level officer, it cannot be said that the provisions of J&K Prevention of Corruption Act have not been complied with.
Case Title: M/s Manu Mohit Industries Vs State of J&k & Ors.
Citation: 2022 LiveLaw (JKL) 89
The Jammu & Kashmir and Ladakh High Court observed that an order passed by Industrial Disputes Tribunal/ Labour Court on disputed questions of fact cannot be challenged by way of a petition under Article 226 of the Constitution.
"If the challenge is limited only to the correctness or otherwise of the award, then it has to be considered that the power under Article 227 of Constitution has been invoked because the cause has not been initiated for the first time before the High Court," Justice Wasim Sadiq Nargal said.
90) No Vicarious Liability Under Criminal Law Unless Strictly Mandated By Statute: J&K&L High Court
Case Title: Ashish Damija Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 90
The Jammu and Kashmir and Ladakh High Court on Friday ruled that in criminal law, there is no concept of criminal vicarious liability and it is only if there is a statute which makes a person vicariously liable for the acts of another person that such a person can be prosecuted for a criminal offence.
"One such example is the provision contained in Section 34 of the Drugs and Cosmetic Act whereby the persons incharge of and responsible for the conduct of business of the company are made vicariously liable for the offences committed by the company" Justice Dhar observed.
Case Title: Nazir Ahmad Parra Vs UT of J&K.
Citation: 2022 LiveLaw (JKL) 91
The Jammu & Kashmir and Ladakh High Court ruled that a Judicial Magistrate may face administrative action as well as charge for destroying the record of the Court if any application, whether civil or criminal, received by the court is not properly diarized and registered.
Justice Sanjay Dhar observed that the applications in original are being sent by the Judicial Magistrates to the police stations with endorsements instead of sending a copy of order and thhe copy of such applications to the police concerned. By acting in this manner, the court said, the Magistrates are destroying the record of the Court.
Case Title: Sadat Hussain Vs State of J&K.
Citation: 2022 LiveLaw (JKL) 92
A bench of Justice Rahul Bharti observed, "In case any public servant is to be subjected to a surveillance mode by a rank holder police official on the pretext of a complaint received without first entertaining the said complaint into a formal process, then surely the very confidence of the public servant in acting and doing his duty will be subjected to a paralysis".
Case Title: Rakesh Kumar Chaudhary Vs Union of India.
Citation: 2022 LiveLaw (JKL) 93
The Jammu and Kashmir and Ladakh High Court ruled that failure to mention blacklisting to be one of the probable actions that could be taken against the delinquent bidder does not, by itself, disable the Govt from blacklisting a delinquent bidder, if it is otherwise justified.
Fraud vitiates every solemn proceeding and, therefore, a person indulging in the same cannot claim any right on the basis of technicalities, concluded Justice Sindu Sharma.
94) CrPC | Order Of Maintenance Does Not Get Wiped Out Because Of Settlement During Pendency Of Execution Proceedings: J&K&L High Court
Case Title: Abdul Qayoom Bhat Vs Danish Ul Islam & Ors.
Citation : 2022 LiveLaw (JKL) 94
The Jammu and Kashmir and Ladakh High Court held that merely because a settlement has taken place between warring spouses during the pendency of execution proceedings, the order of maintenance passed by a Magistrate under Section 488 of J&K CrPC does not get wiped out if the settlement does work.
The fact that the respondents may have resided with the petitioner during the period the settlement was in operation, is immaterial as the order of maintenance remained only suspended and the same was not wiped out but got revived retrospectively after the failure of the settlement, the court concluded.
95) Even If Prima Facie Case Is Established, Bail Overrides Pre-Trial Punishment: J&K&L High Court
Case Title: Davinder Sharma Vs CBI
Citation: 2022 LiveLaw (JKL) 95
The Jammu and Kashmir and Ladakh High Court ruled that even if prima facie case is established against an accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment as pre-trial punishment as the same clearly falls foul of the principles of criminal jurisprudence.
Case Title: Dr Lahoot Hassan & Ors Vs SHO Vigilance Organization Kashmir
Citation: 2022 LiveLaw (JKL) 96
The Jammu and Kashmir and Ladakh High Court ruled that the expression "sufficient cause" under Sec 5 of Limitation Act has to be given liberal construction and the Courts while considering the delay in filing appeal have to avoid technicalities so that merit is preferred and scuttling of decision on merits is avoided.
The expression "sufficient cause" used in the provision must receive a liberal construction so as to advance substantial justice and unless there is gross negligence or deliberate inaction or lack of bonafides attributable to the parties seeking condonation of delay, such a prayer should not be declined, Justice Sanjay Dhar underscored.
Case Title: J&K PSC Vs Dr Rajeev Gupta
Citation: 2022 LiveLaw (JKL) 97
The Jammu and Kashmir and Ladakh High Court comprising Justices Sindhu Sharma and Rahul Bharti recently ruled that 'Law of Pleadings' does not go missing when it comes to the matter of maintaining a writ petition before the High Court and it does not recognize any exception for an individual or an institution coming as a petitioner.
"The fact remains that the writ petition is divorced of the elementary pleading as to the locus standi of the petitioner J&K PSC in assailing the impugned judgment of the Central Administrative Tribunal Jammu Bench which is surely not affecting or meaning to affect any legal/statutory/constitutional right and status of the petitioner J&K PSC", the bench recorded.
Case Title: Ishfaq Ahmad Najar Vs State of J&K
Citation: 2022 LiveLaw (JKL) 98
The Jammu and Kashmir and Ladakh High Court comprising Justice Sanjay Dhar ruled that the provisions of J&K Juvenile Justice Act 2013 are retrospective in nature and accordingly the age of juvenility has to be taken as 18 years and not 16 years, which was the age of juvenility under the Act of 1997, even though that was in force at the time of commission of the alleged occurrence.
99) Deep Appreciation Of Facts Not Required At Stage Of Framing Charges: J&K&L High Court
Case Title: MASHOOQ AHMAD BEIGH v UNION TERRITORY OF J&K & ORS
Citation: 2022 LiveLaw (JKL) 99
A single bench of J&K&L High Court observed that It is a settled law that while considering the case for charge or discharge of an accused, the court is not required to enter into deeper appreciation of the facts.
Justice Sanjay Dhar further observed that at the stage of framing of charge, the court has only to consider the material for framing opinion as to whether prima facie offence is committed which would require the accused to be put on trial. A strong suspicion is enough to suggest commission of offence by an accused.
Case Title: Raaisha Vs Syed Sudhanshu Pandey
Citation: 2022 LiveLaw (JKL) 100
The Jammu and Kashmir and Ladakh High Court ruled that grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 of CrPC but, when the paternity of a child is seriously disputed it would not be prudent for a Magistrate to fasten the liability of maintaining the child without first ascertaining the veracity of the claims.
Case Title: State of J&K Vs Mushtaq Ahmad Naik & Ors.
Citation 2022 LiveLaw (JKL) 101
The High Court of Jammu & Kashmir and Ladakh ruled that the completion of seven years of continuous service alone would not entitle a daily wager for regularization, unless other eligibility conditions were fulfilled.
"A Daily Rated Worker would become eligible for regularization on fulfilment of all the conditions as contained in Rule 4 of the provisions of SRO 64. Completion of seven years of continuous period of daily wage service alone thus would not entitle a daily wager for regularization unless such daily wager fulfills other eligibility conditions," the bench underscored.
Case Title: Arshad Hussain Vs General Officer Commanding 56 APO
Citation: 2022 LiveLaw (JKL) 102
The Jammu and Kashmir and Ladakh High Court ruled that a party seeking appointment of an arbitrator through the intervention of the court must demonstrate that there was a failure by the other party in following the procedure and accepting the request for the appointment of an arbitrator before approaching the court.
"In the absence of such a notice, demand for arbitration and the mentioning of the specific dispute which require adjudication it cannot be said that there actually exists any arbitral dispute between the parties which is referable to arbitration", Chief Justice Pankaj Mithal recorded.
Case Title: Adnan Hassan Khan & Ors Vs Irshad Ahmad Kamili
Citation: 2022 LiveLaw (JKL) 103
Justice Sanjay Dhar Of J&K&L High Court observed that in order to lodge a proper complaint, mere mention of the sections and language of these sections is not all that is needed. What is required to be brought to the notice of the court is the particulars of the offences committed by each and every accused and the role played by each and every accused in commission of those offences...Unless specific allegations are made against the accused, it cannot be stated that they are involved in the alleged offences, the bench underscored.
104) Bench Not Superior To Bar: J&K&L High Court Expunges Magistrate's Remarks Against Advocates
Case Title: Latief Ahmad Rather Vs Shafeeqa Bhat
Citation: 2022 LiveLaw (JKL) 104
The Jammu and Kashmir and Ladakh High Court observed that the advocates are the officers of the Court and deserve the same respect and dignity as is being given to the Judicial Officers and Presiding Officers of the Courts.
Justice Sanjay Dhar observed "Bench and Bar are two wheels of the chariot of justice. Both are equal and no one is superior to the other. The members of the Bar, as such, deserve the utmost respect and dignity."
Case Title: Ram Charan Singh Vs Ranjyoti Singh
Citation: 2022 LiveLaw (JKL) 105
The Jammu and Kashmir and Ladakh High Court ruled that the finer elements of the pleadings, which are required to be mentioned in proceedings like a civil suit, if not incorporated in a claim petition filed under the provisions of the Motor Vehicles Act will not necessarily prove fatal for the claimant.
"The sum and substance of the claim petition should be gauged and not the phrasing of the claim petition in order to do justice in the case. The pedantic approach in this regard can deprive the petitioner of compensation which may be otherwise due to the claimant. That cannot be the legislative intent behind the provisions of the Motor Vehicles Act", the bench recorded.
Case Title: Majid Nabi Khan Vs Executive Officer MC Bijbehara
Citation: 2022 LiveLaw (JKL) 106
The Jammu and Kashmir and Ladakh High Court ruled that Section 107 and 108 read with Order 43 Rule 2 CPC does not empower an appellate court to mutate the very script of the suit before the trial court and create a new fact situation alien to the original lis and proceed on to carry forward its own perception-based outcome to a given civil suit.
Case Title: Darshan Singh Vs Indru Devi
Citation: 2022LiveLaw (JKL) 107
The Jammu and Kashmir and Ladakh High Court ruled that the purpose of appointment of the Commissioner is limited and the report of the Commissioner is not the final word as it is subject to the objections that may be taken by the parties to the suit.
Case Title: Tanveer Ahmad Khan Vs JK BOSE
Citation: 2022 LiveLaw (JKL) 108
The bench of Justice Javed Iqbal Wani reiterated that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee and to deny such benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee
Case Title: Abdul Rehman Dar Vs Tariq Ahmad Wagay
Citation : 2022 LiveLaw (JKL) 109
A single bench of Justice Rahul Bharti recently resorted to a remedial measure of recommending to the Chief Justice of the High Court of Jammu & Kashmir and Ladakh to recall an incumbent judge from his/her posting as Munsiff, Anantnag for undergoing refresher training in the State Judicial Academy for an appropriate course of the period before restoring judicial/court work to said judicial officer
The courts comprised in the district judiciary are the first point of interface with citizens and accordingly this Court is constrained to take cognizance of the manner in which the Presiding Officer of the Court of Munsiff, Anantnag has come to act in discharge of judicial function and conduct the cases which leave the administration of justice becoming a mocking matter at the hands of the judge of the civil court itself, and which is likely to erode, and in fact must have already eroded, the respect oriented public perception viz the district level judicial institution,the bench noted.
Case Title: Ghulam Mohd Mir Vs Tej Krishan Ganjoo & Ors.
Citation : 2022 LiveLaw (JKL) 110
The Jammu and Kashmir and Ladakh High Court reiterated that there is no bar under section 190 Cr.P.C. that once the process is issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is some material on record but his name is not included as accused in the chargesheet.
Case Title: Mohammad Shafi Wani Vs Noor Mohammad Khan
Citation: 2022 LiveLaw (JKL) 111
The Jammu and Kashmir and Ladakh High Court reiterated that the provisions contained in Section 138 of the NI Act must be interpreted in a liberal manner so as to achieve the object for which the said provision has been enacted.
Not only the cases of dishonour of cheques on account of insufficiency of funds or on account of exceeding of arrangement but the cases involving dishonour of cheques on account of "stop payment", "account closed" and "Signature Mismatch" also fall within the ambit of offence under the aforesaid provision, the bench underscored
Case Title: Showkat Ahmad Bhat & others Vs Khazir Mohammad Bhat & others
Citation: 2022 LiveLaw (JKL) 112
The Jammu and Kashmir and Ladakh High Court ruled that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Motor Vehicles Act and that standard to be followed in motor accident claims is one of preponderance of probability rather than one of proof beyond reasonable doubt.
Case Title: Faheem Sultan Gojree V/s UT of J&K and another
Citation: 2022 LiveLaw (JKL) 113
Justice Sindhu Sharma observed, "The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property."
Case Title: Sakib Ahmad Sheroo Vs UT of J&K & Ors
Citation: 2022 LiveLaw (JKL) 114
Justice Sanjay Dhar observed "The petitioner has been booked in an offence falling under Chapter IV of the ULAP Act and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote. Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention. The Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and, as already discussed, there is no such material on record."
Case Title: United Insurance Co Ltd Vs Jawahira Begum &Ors
Citation : 2022 LiveLaw (JKL) 115
The Jammu and Kashmir and Ladakh High Court ruled that Provident Fund, Pension, Insurance, bank balance, shares, fixed deposits, etc., are all pecuniary advantages receivable by heirs on account of one's death but all these have no correlation with the amount receivable as compensation under the Motor Vehicles Act, a statute occasioned only on account of accidental death.
Justice Vinod Chaterjee Koul Observed,
"The deceased employee works throughout his life expecting that on his retirement he will get substantial amount as pension and gratuity and these amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted".
Case Title: Reyaz Ahmad Dar V/s U.T. of J&K and another
Citation: 2022 LiveLaw (JKL) 116
A bench of Justice Sindhu Sharma observed: "If a detention order is quashed, the grounds of the order so quashed cannot be taken into consideration either in whole or in part or even along with the fresh grounds of detention for drawing subjective satisfaction to pass fresh order of detention.
Case Title: Managing Director J&K SRTC Vs Syed Arshad Tramboo & Ors
Citation: 2022 LiveLaw (JKL) 117
The bench comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal observed that Rules nowhere provide that the outsiders can be brought in by way of "deputation" infringing fundamental right of persons, who are born on the establishment of the Corporation and have preferential right of being considered for promotion.
"To bring the officers from outside by way of deputation to the Corporation can be only in the eventuality if no suitable person is found eligible in the Corporation after assessing their merit, eligibility and suitability", Justice Nargal observed.
Case Title: National Insurance Co Ltd Vs Mushtaq Ahmad Kutary
Citation: 2022 LiveLaw (JKL) 118
The Jammu and Kashmir and Ladakh High Court ruled that under the Motor Vehicles Act, mere absence, fake or invalid driving licence or disqualification of driver to drive at the relevant time are not in themselves defences available to the insurer against either insured or third parties. To avoid liability towards insured, the insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care.
Case Title: Jalal Ud Din Ganai Vs UT of J&K
Citation; 2022 LiveLaw (JKL) 119
The Jammu and Kashmir and Ladakh High Court on ruled that every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but the reverse is not true. It is only the acts prejudicial to the public order which are of 'grave nature' that would qualify to be termed as acts prejudicial to the security of the state, Justice Sanjay Dhar Stated.
"The expressions "security of the state" and "public order" are quite distinct from each other, inasmuch if contravention of law affects the community or public at large, it amounts to disturbance of public order whereas if the disturbance of public order is of grave nature which affects the security of the state, then the same constitutes an act that would affect the security of the state. Thus, every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but reverse is not true", the bench noted.
Case Title: Bashir Ahmad Dada & Ors Vs Ghulam Mohi Ud Din
Citation: 2022 LiveLaw (JKL) 120
The Jammu and Kashmir and Ladakh High Court ruled that merely by changing the label of the offence by making it one under Section 420 IPC instead of Section 495 IPC, one cannot avoid the legal bar on cognizance by courts under Section 198 of CrPC.
"Thus, her alleged act squarely falls within the definition of offence under Section 495 of the RPC. The respondent, instead of choosing to prosecute the petitioners for offence under Section 495 of RPC, has chosen to prosecute them for offence under Section 420 of RPC. This appears to this Court, as a case where the respondent is trying to evade the bar to taking of cognizance of offence under Section 495 RPC created under Section 198 of the Cr. P. C", the bench recorded.
Case Title: State Through P/S Zainapora Vs Zia Mustaffa
Citation: 2022 LiveLaw (JKL) 121
Reopening the case Justice Sanjay Dhar observed " If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity The power of recall is different from the power of altering/reviewing the judgment".
Case Title: Rishi Sharma Director Haustus Biotech Vs Drug Inspector
Citation : 2022 LiveLaw (JKL) 122
The Jammu and Kashmir and Ladakh High Court held that under the section 32-A of Drugs and Cosmetics Act 1940 it is only after trial has commenced and the evidence has been led, power to implead manufacturer or any other person who appears to be involved in the offence can be exercised and prior to that, no such power can be exercised.
"One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the court can proceed against that other person, while in the latter the satisfaction of the court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends." Justice Sanjay Dhar observed.
123) Arbitrator Is A Creature Of Contract & Hence Cannot Supercede It By Any Means : J&K&L High Court
Case Title: Union of India Vs M/S D. Khosla Co & Ors.
Citation: 2022 LiveLaw (JKL) 123
The Jammu and Kashmir and Ladakh High Court ruled that an arbitrator is creature of the contract between the parties and, therefore, if he ignores the specific terms of the contract, it would be a question of jurisdictional error, which could be corrected by the Court under Section 30 of J&K Arbitration Act, 2002 and for that limited purpose the agreement is required to be looked into.
"The award can be interfered with by the Court, if it is found that the arbitrator has travelled beyond his jurisdiction and has awarded claims which would be beyond the scope of submission. The award will also be bad, if the arbitrator, who himself is a creature of the contract agreement travels beyond the terms and conditions of the contract and awards claims on the excepted items. Such award would be invalid and can very well be interfered with by the Court," Justice Sanjeev Kumar observed.
Case Title: National Highway Authority of India Vs Ali Mohammad Dar & Ors.
Citation: 2022 LiveLaw (JKL) 124
The Jammu and Kashmir and Ladakh High Court recently ruled that in the event of enhancement of compensation for land acquisition by the reference court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court only after obtaining leave of the court as prescribed u/s 50(2) of the Land Acquisition Act.
Case Title: Waqar Ahmad Dar Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 125
The Jammu and Kashmir and Ladakh High Court ruled that the expression "possession" used in the provisions contained in Section 20 and 22 of the NDPS Act clearly specify that the standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another.
"The term "conscious possession" is not capable of precise and complete logical definition of universal application in the context of all the statute and the knowledge of possession of contraband has to be ascertained from the fact and circumstances of the case," Justice Sanjay Dhar observed.
Case Title: M/S JK Stationers Vs State of J&K
Citation: 2022 LiveLaw (JKL) 126
The Jammu and Kashmir and Ladakh High Court ruled that only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case can be used, while arraigning an additional accused under Section 319 CrPC.
"Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. The Supreme Court has, while answering the aforequoted question framed by it, laid down that besides the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 of the Cr. P. C", Justice Sanjay Dhar recorded.
Case Title: Farooq Ahmad Bhat Vs Syed Basharat Saleem
Citation: 2022 LiveLaw (JKL) 127
The Jammu and Kashmir and Ladakh High Court ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion.
Case Title: Altaf Ahmad Zargar Vs Mst Sana & Ors
Citation: 2022 LiveLaw (JKL) 128
The Jammu and Kashmir and Ladakh High Court ruled that the proceedings under Section 12 of the Domestic Violence Act cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings.
Case Title: New India Assurance Co Vs Mehra Begum
Citation: 2022 LiveLaw (JKL) 129
The Jammu and Kashmir and Ladakh High Court ruled that in a claim with regard to death or disability of a person travelling by a goods vehicle /goods carriage, as gratuitous or non-gratuitous does not, by the application of statutory provisions of Motor Vehicles Act, fasten the liability on the insurer, except an owner of the load /goods travelling in the vehicle having such load /goods.
Case Title: Muzamil Ahmad Dar V/s High Court of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 130
The Jammu and Kashmir and Ladakh High Court observed that unless a recruitment advertisement specifically mentions that the experience gained in a skill/ trade should be after the candidate has obtained a Diploma in that course, the prior experience can be considered for the purpose of selection and appointment.
Case Title: Bashir Ahmad Wani v J&K Grameen Bank and Another
Citation: 2022 LiveLaw (JKL) 131
The Jammu and Kashmir and Ladakh High Court observed that an employee who is removed from service for misconduct is not at par with those who retire on superannuation.
Case Title: Aijaz Ahmad Sofi v. UT of J&K
Citation: 2022 LiveLaw (JKL) 132
The Jammu and Kashmir and Ladakh High Court observed that non-consideration by the detaining authority, a detenu's representation against an order for his preventive detention, violates such detenu's rights under Article 22 of the Constitution.
"I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional." the court recorded.
Case Title: Liaqat Ali Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 133
The bench of Justice Rajnesh Oswal and Justice Mohan Lal observed that in rape cases, the victim loses her face, and her value as a person. The Court further emphasized that in our conservative society, a woman and more so a young unmarried woman will not put her reputation in peril by falsely alleging forcible sexual assault.
Case Title: Mst Hameeda Vs State of J&K
Citation: 2022 LiveLaw (JKL) 134
The Jammu and Kashmir and Ladakh High Court made it clear that a person exercising his or her rights that are ordained by the law cannot be said to have deterred the official duty of a public servant, who under a mistaken belief, tried to stop such exercise of rights.
Justice Sanjay Dhar observed:
"It can never be the duty of a public official to prevent a person from exercising his/her right which is sanctioned by law.
135) NI Act | Joint Petition In Respect Of Different Causes Of Action Not Maintainable: J&K&L High Court
Case Title: Naseer Ahmad Sheikh Vs Mohammad Sultan Bhat.
Citation: 2022 LiveLaw (JKL) 135
The Jammu and Kashmir and Ladakh High Court observed that a joint petition in respect of different causes of action is not maintainable.
"The instant petition is not otherwise maintainable as through the medium of instant petition, the petitioner has challenged as many as four complaints and four separate orders directing issuance of process against him by the trial court. A joint petition in respect of different causes of action is not maintainable. On this ground also, the petition deserves to be dismissed," Justice Sanjay Dhar observed.
Case Title: Mushtaq Ahmad Peer v/s State of J&K
Citation: 2022 LiveLaw (JKL) 136
The Jammu and Kashmir High Court made it clear an appeal against conviction by Sessions Court would lie before a Division Bench of the High Court, where the sentence of imprisonment awarded exceeds 10 years. However, the appeal would be heard and decided by a Single Judge, if the sentence is less than 10 years.
Case Title: Mohammad Ali Bhat Vs Shafeeqa Bano & Ors
Citation : 2022 LiveLaw (JKL) 137
The Jammu and Kashmir and Ladakh High Court held that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.
"It is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife,", Justice Sanjay Dhar observed.
138) Pendency Of Prosecution No Bar To An Order Of Preventive Detention :J&K&L High Court
Case Title: Manzoor Ahmad Lone Vs UT of J&K & Ors
Citation: 2022 LiveLaw (JKL) 138
The Jammu and Kashmir and Ladakh High Court ruled that the pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.
"An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order," Justice Moksha Khajuria Kazmi observed.
Case Title: Showkat Aziz Zargar Vs Nabeel Showkat & Another
Citation: 2022 LiveLaw (JKL) 139
The Jammu and Kashmir and Ladakh High Court ruled that a major son or daughter cannot be awarded maintenance by a Magistrate in exercise of his powers under Section 125 of CR.P.C but in an appropriate case, a Family Court has jurisdiction to grant maintenance to a major Hindu daughter on the basis of a combined reading of the provisions contained in Section 125 of the Cr. P. C and Section 20(3) of the Hindu Adoption and Maintenance Act.
Case Title: Vijay Gupta & Ors Vs Deeksha Sharma & Ors
Citation: 2022 LiveLaw (JKL) 140
The Jammu and Kashmir and Ladakh High Court comprising Justice Vinod Chatterji Koul ruled that in an offence falling under Section 494 IPC of performing/ contracting second marriage during the subsistence of first valid marriage, it is only the Court within whose jurisdiction the second marriage is performed which has the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code.
Case Title : Abdul Bari Naik v. State of J&K and others
Citation : 2022 LiveLaw (JKL) 141
The bench of Justice Sanjay Dhar noted that as per the investigation conducted by the investigating agency, the petitioner is trying to motivate the common people towards separatism and he is provoking them against the police and security forces as also against district administration.
"In one of the video clips, the petitioner is seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner is conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner is seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities," the Court further remarked.
CASE TITLE: BHARTI AIRTEL LIMITED COMPANY & ORS v MALIK MUSHTAQ
Citation: 2022 LiveLaw (JKL) 142
The Jammu and Kashmir and Ladakh High Court recently observed that the summoning of an accused in a criminal matter is a serious business and the same has to be done only after de application of mind by the court concerned.
Justice Sanjay Dhar said:
"Summoning of an accused in a criminal matter is a serious business. Once the criminal law is set into motion, the accused is exposed to the possibility of arrest and he has to rush to the court to seek bail. Therefore, the order of summoning an accused in a criminal complaint should not be a mechanical exercise but such an order should reflect that the Magistrate has applied his mind to the facts of the case and the applicable law, whereafter the Magistrate has to record his satisfaction as to whether any offence is made out and if so, which of the offences is made out from the contents of the complaint and the material available before him. It is only thereafter that the Magistrate has to decide as to whether or not the process has to be issued against an accused."
Case Title: Symbiosis Pharmaceuticals Pvt Ltd Vs State of J&K
Citation: 2022 LiveLaw (JKL) 143
The Jammu and Kashmir and Ladakh High Court ruled that a drug manufacturer has a right to dispute the correctness of the report of the government analyst within the statutory period of 28 days from the date of the receipt of the report as per the mandate of section 25 (3) of the Drugs and Cosmetics Act, 1940.
Justice Rajnesh Oswal observed,
"Law permits the drug manufacturer to controvert the report expressing his intention to adduce evidence to controvert the report within the prescribed limitation of 28 days as provided under Section 25(3) of the 1940 Act. In view of the fact that the appellants did not express an intention to adduce evidence to controvert the analyst report within the statutory limitation period of 28 days, further delay in filing the complaint becomes immaterial".
Case Title: UT Of J&K Vs Javid Ahmad Shah
Citation: 2022 LiveLaw (JKL) 144
The Jammu & Kashmir & Ladakh High Court ruled that offering of funeral prayers of a killed militant by the public at large cannot be construed to be anti-national activity of that magnitude to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution.
The Division bench of Justices Ali Mohammd Magrey and MA Chowdhary observed,
"Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India"
Case Title: Ashok Kumar Sarngal & Ors Vs State of J&K
Citation: 2022 LiveLaw (JKL) 145
The Jammu and Kashmir and Ladakh High Court ruled that training can act as a distinguishing factor to enable Govt to frame a separate seniority list in the same Department and the Government therefore is well within its rights to frame such rule/principle provided that such principle/rule is reasonable, fair and non-discriminatory.
"Cadre management is exclusively the prerogative of the Government and the Government, as such, has a free hand in the matter of managing any cadre of the service provided that the action of the Government must be reasonable and fair and above all non-discriminatory. Thus, no fault can be attributed to the Government to have different seniority on the basis of training for the appellants", Justices Tashi Rabstan and Wasim Sadiq Nargal observed.
Case Title: Abdullah Danish Shervani Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 146
The Jammu and Kashmir and Ladakh High Court comprising Justice Sanjay Dhar ruled that offences arising out of matrimony, where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings.
Case Title: Amir Hassan Mir Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 147
The Jammu and Kashmir and Ladakh High Court ruled that conditions imposed by the court Section 439(1)(a) CrPC while granting bail cannot by any stretch of imagination be construed to mean that accused person is in custody so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right of default bail under proviso to sub-section (2) of Section 167 CrPC read with Section 36A(4) of the NDPS Act.
"By imposition of such conditions, the physical custody of the accused does not vest with the Court as his movement is not in any way restricted. It cannot be stated that he was in physical custody of the Court so as to claim the computation of such period in reckoning the period of 180 days of detention to acquire the statutory right under proviso to sub-section (2) of Section 167 Cr. P. C read with Section 36A(4) of the NDPS Act", Justice Sanjay Dhar explained.
Case Title: M/S Amira Engineers Vs Telecommunications Consultants India & Ors.
Citation : 2022 LiveLaw (JKL) 148
The Jammu and Kashmir and Ladakh High Court ruled that writs under Article 226 are maintainable for asserting contractual rights against the State or its instrumentalities and the presence of Arbitration clause does not oust the jurisdiction under Article 226 in all cases though it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked
Case Title: Tufail Ahmad Chota Vs State of J&K
Citation: 2022 LiveLaw (JKL) 149
The Jammu and Kashmir and Ladakh High Court observed that in a criminal case when a graver offence is added, the accused who is on bail has an option of surrendering before the Court and apply for bail for newly added offence or even the investigating agency, on addition of a graver offence, has an option to proceed to arrest the accused but before doing so, it need to obtain a fresh order of arrest against the accused from the Court that had granted the bail.
Case Title: Riyaz Ahmad Wagay Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 150
The Jammu and Kashmir and Ladakh High Court ruled that when a Magistrate defers issuance of process under Section 202 CrPC against the accused, it is not open for him to pass directions to seize a suspected stolen property.
"Unless the learned Magistrate had material before him to come to a tentative conclusion that the vehicles in question were subject matter of theft, he could not have made an order for seizure of vehicles in question. The fact that the learned Magistrate has not issued process against the petitioner in the complaint filed by the respondent, shows that the learned Magistrate has yet to render a prima facie opinion about the commission of offence of theft by the petitioner. Without applying his mind to the material on record and without recording his satisfaction as regards the commission of offence by the petitioner/accused, it was not open to the learned Magistrate to direct the seizure of the vehicles" Justice Sanjay Dhar expounded.
Case Title: Rayees Ahmad Dar Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 151
The Jammu and Kashmir and Ladakh High Court ruled that the term 'Magistrate' appearing in Section 26 of the Evidence Act refers only to a Judicial Magistrate of first class or a Metropolitan Magistrate and no other class of Magistrates.
The bench comprising Justice Sanjay Dhar observed:
"Giving it any other construction would defeat the provisions contained in Section 164 of the Cr. P. C, which provides for safeguards for ensuring recording of confessions of the accused in a free and fair environment."
Case Title: Parvez Ahmad Baba Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 152
The Jammu & Kashmir & Ladakh High Court ruled that if there are more than one owners of an authorized premises and only one of them applies for licence while others object, it would not be possible for the designated authority to issue license under section 31 of the Food Safety and Standard Act 2006, unless the dispute between the co-sharers is settled.
Case Title: Javid Ahmad Shah Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 153
The Jammu and Kashmir and Ladakh High Court ruled that it has only to be after 5-6 years in case the appeal is not disposed of, that suspension of sentence and grant of bail under Section 389 CrPC be considered, in a heinous case like murder.
"There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellant court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine", the bench explained.
Case Title: UT of J&K Through Chairman JKBOPEE Vs Dr Bhat Ab. Ubran Bin Aftab and Others
Citation: 2022 LiveLaw (JKL) 154
The Jammu and Kashmir and Ladakh High Court observed that the benefit of reservation must reach to the deserving candidate in the category and State is under obligation that this benefit is not eaten away by a candidate of reserved category, who has equal or better merit than that of candidate last admitted in the professional course in the general category.
"The Section 10 in clear and unambiguous terms, provide that there shall be no bar for admission of a member of reserved category against the seat other than or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category," the bench underscored.
Case Title: Abdul Majeed Ganai Vs Abdul Rahim Bhat & Another
Citation: 2022 LiveLaw (JKL) 155
The Jammu and Kashmir and Ladakh High Court observed that a compromise deed is essentially a contract between the parties superimposed by the decree of the Court and such a decree can be avoided only by approaching the same Court and demonstrating before it that the compromise on the basis of which decree is passed is not lawful
Case Title: Parvesh Bahri & Ors Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 156
The Jammu and Kashmir and Ladakh High Court ruled that the Divisional Commissioner is only the authority competent to grant permission for alienation under Section 3 of the J&K Migrant Immovable Property 1997, whereas it is the District Magistrate having the jurisdiction in the area where the property is situated, who is given authority to hold an enquiry into the alienation allegedly made in contravention of the provisions of the Act
Case Title: Geeta Devi & Ors Vs M/s Somnath Naragmal & Anr.
Citation: 2022 LiveLaw (JKL) 157
The Jammu and Kashmir and Ladakh High Court ruled that the High Court is not a creature of a statute like Employee's Compensation Act but it is a creature of the Constitution and hence the limitations of jurisdiction as contained in the Act of 1923 are not applicable to the jurisdiction of the High Court.
"It is a well settled proposition of law that being a Court of record, the High Court is vested with powers to proceed under Article 226 of Constitution of India itself and to review a judgment if it is found that there was any material suppression or the Court was not right in passing a verdict. The High Court is not a creature of a statute like Employee's Compensation Act but it is a creature of the Constitution. Hence, the limitations of jurisdiction as contained in the Act of 1923 are not applicable to the jurisdiction of the High Court. Thus, the contention of the learned counsel appearing for the respondent-insurer that the power of this Court to review its own order are circumscribed by the provisions contained in the Act of 1923 is a specious argument, which deserves to rejected", the bench recorded.
Case Title: Mohammad Abbas wani Vs Sharifa & Ors
Citation: 2022 LiveLaw (JKL) 158
The Jammu and Kashmir and Ladakh High Court held that it is open to insurance company to take a defence in a claim petition under MV Act that the driver of offending vehicle was not duly licenced, but it is required to prove such a plea.
A bench of Justice Vinod Chatterji Koul observed,
"Nevertheless, even after proving that licence was a fake one, it is to be looked into that the owner of vehicle while hiring a driver checked the licence and satisfied himself as to competence of driver and if the owner is drew such satisfaction from the DL no breach u/s 149 of the said will stand attracted".
Case Title: Vijay Singh Vs Lalita Karki & Ors
Citation: 2022 LiveLaw (JKL) 159
The Jammu and Kashmir and Ladakh High Court ruled that Sub-rule (3) of Rule 1 of Order XVI CPC confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list or the party is unable to produce him or her on his own under Rule 1A and in such a situation, the party out of necessity may seek the assistance of the Court under sub-rule (3) to procure the presence of the witness.
Case Title :Bashir Ahmad Bhat Vs Ghulam Ahmad Bhat
Citation : 2022 LiveLaw (JKL) 160
The Jammu and Kashmir and Ladakh High Court while answering a question as to what are the consequences if an appeal is not accompanied by an application as mentioned in Subrule (1) of Rule 3A in Order 41 of CPC observed,
"The Deficiency of not accompanying application for condonation of delay is curable defect and if required such an application can be filed subsequently and the appeal can be treated as presented in accordance with the requirem Rule 3A of Order XLI CPC".
161) Black Money Stashed Abroad Threatens National Security : J&K&L High Court
Case Title: Tabasum Mir Vs Union of India
Citation: 2022 LiveLaw (JKL) 161
The Jammu and Kashmir and Ladakh High Court observed that money stashed abroad by evading tax could be used in ways which could threaten national security.
The division bench of Justices Ali Mohammad Magrey and M.A Chowdhary observed that tax evasion puts a disproportionate burden on the honest taxpayers as they have to bear the brunt of higher taxes to make up for the revenue leakage caused by the evasion.
The court added that stashing away of black money abroad by some people with the intent to evade taxes has been a matter of deep concern to the nation.
162) Electrocution: High Court Orders J&K Admin To Pay Over Rs 24 Lakh Compensation To Victim's Family
Case Title: Saleema Begum & Ors Vs State of J&K
Citation : 2022 LiveLaw (JKL) 162
The Jammu & Kashmir and Ladakh High Court directed the Jammu and Kashmir administration to pay over Rs 24 lakh as compensation to the family of a person who died due to electrocution after an 11,000 KV line fell on his head in north Kashmir's Uri area in July 2013.
"The respondents being the managers of the electric supply of the area were duty bound in law to ensure that the requisite measures are in place to prevent the leakage, loss of such energy or to see that the wire snapped would not remain live on the road to endanger the lives of the people," said the court.
Case Title: UT of J&K Vs Hilal Ahmad Rather
Citation: 2022 LiveLaw (JKL) 163
The High Court of J&K and Ladakh held that suspension of an employee over alleged misconduct is not a punishment but, if the suspension is prolonged for more than 4 years, then it amounts to punishment, as it has very strong stigmatic social connotations.
The court observed that from the perusal of the order of suspension, it was clear that the inquiry was required to be completed within 15 days, "which itself proves beyond any shadow doubt that the State was conscious of the seriousness and urgency involved in the matter, yet they slept over the matter for four long years to initiate an inquiry by way of issuing chargesheet to the delinquent".
Case Title : Sanjay Kumar Vs State of J&K and others
Citation : 2022 LiveLaw (JKL) 164
The Jammu and Kashmir and Ladakh High Court ruled that the payment of wages at the rate of Rs. 500 per year since 1998 to a government school employee is clearly a form of Forced Labour, which is strictly prohibited under Article 23 of the Constitution of India.
"This Court being a custodian of the fundamental rights cannot shut its eyes to the injustice carried out against the petitioner by an act of the State, which claims to achieve socio economic equality as the cherished dreams of the Constitution," said a single bench in an order dated September 19.
Case Title: Khursheed Ahmad Bhat Vs UT of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 165
The Jammu and Kashmir and Ladakh High Court, while quashing a preventive detention order, observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order.
"Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention", the bench added.
Case Title: Prem Nath & Ors Vs State of J&K
Citation: 2022 LiveLaw (JKL) 166
The Jammu and Kashmir and Ladakh High Court held that mere reinstatement into service without a clean chit in departmental inquiry is not a ground to quash criminal proceedings emanating from the set of allegations.
The bench of Justice Sanjay Dhar observed,
"It is clear that the petitioners, who were associated with the project, have not been given a clean chit, but their roles have come under scanner...merely because the petitioners have been reinstated pursuant to the departmental enquiry, does not mean that they can not be prosecuted for criminal offences."
Case Title :State of J&K & Ors Vs Mir Fathima
Citation : 2022 LiveLaw (JKL) 167
The Jammu and Kashmir and Ladakh High Court ruled that even if the cause of accident is remote or as a result of subversive activity involved, the victim is entitled to grant of compensation under Motor Vehicle Act.
"The death of the deceased had taken place due to use of the vehicle and the same cannot be said that the land mine blast can divest the accident from the use of the vehicle. The appellants being functionaries of the law and order in the State knew it very well that planting of land mine was the order of the day in those days particularly the security vehicles being the target", the bench observed.
Case Title :Mushtaq Ahmad Pandit Vs Addl Deputy Commissioner & Ors
Citation : 2022 LiveLaw (JKL) 168
The Jammu and Kashmir and Ladakh High Court cautioned the civil courts that while exercising their jurisdiction utmost care should be taken to ensure that a consent decree is not sought to achieve sinister purposes like avoiding registration of sale deeds or paying stamp duty.
"A collusive decree cannot be used as a cloak for the sale deed. There could be numerous occasions where parties in collusion with each other may approach the civil Courts for passing the decrees in contravention of law and for achieving the unlawful objects," Justice Sanjeev Kumar observed.
Case Title : Mohd Hussain Vs Shabnam Ara
Citation : 2022 LiveLaw (JKL) 169
The Jammu and Kashmir and Ladakh High Court ruled that a Magistrate would be well within its jurisdiction to cancel the interim order passed by it under Section 12 of the Domestic Violence Act, if upon going through the response of the husband and his relatives, it finds that they have been unnecessarily roped in or no case for grant of interim order is made out.
"The Magistrate would be well within his jurisdiction to cancel the interim order passed by him, if upon going through the response of the husband and his relatives, he finds that they have been unnecessarily roped in or no case for grant of interim order is made out. Since the proceedings under Section 12 of the D.V.Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings," Justice Sanjay Dhar explained.
Case Title :Custodian General Vs J&K Special Tribunal
Citation : 2022 LiveLaw (JKL) 170
Determining several important legal questions pertaining to the cases under the Evacuees Property Act, the Jammu and Kashmir and Ladakh High Court held that J&K Special Tribunal can exercise powers of revision against the orders passed by the Custodian General, Evacuee Property.
"It is emphatically clear that the Minister Incharge of the Evacuee's Property may, at any time, call for the record of any proceeding in which any Custodian or Custodian General has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit" Justice Wasim Sadiq Nargal observed.
Case Title :Cadila Pharmaceuticals Ltd Vs Drug Inspector Kathua
Citation : 2022 LiveLaw (JKL) 171
The Jammu and Kashmir and Ladakh High Court ruled that where a company is alleged to have committed a criminal offence and is liable to be prosecuted even without impleading its Directors/persons responsible for conduct of its day to day business, upon conviction, the said company can be sentenced to punishment of fine, even though the offence for which the company has been convicted carries punishment of imprisonment as well.
Case Title :Cipla Ltd Vs State of J&K
Citation : 2022 LiveLaw (JKL) 172
The Jammu and Kashmir and Ladakh High Court ruled that once it is established that the valuable right of the accused under Section 25(3) of the Drugs and Cosmetics Act 1940 to adduce evidence in controversion of the Government Analyst's report is defeated due to acts and omissions of the Drugs Inspector, prosecution against the accused deserves to be quashed.
Case Title :Ravinder Kumar Gupta Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 173
The Jammu & Kashmir & Ladakh High Court, while quashing a detention order under J&K Public Safety Act, recently ruled that acts of land grabbing do not fall within the purview of the activities prejudicial to the maintenance of public order as per the provisions of the Jammu and Kashmir Public Safety Act, 1978
Case Title :Bashir Ahmed Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 174
The Jammu and Kashmir and Ladakh High Court observed that the nature of service of a police official cannot be equated with the nature of any other service and a person who has been convicted of a criminal charge is definitely not fit to serve as police official/officer.
"Even otherwise, once the petitioner was convicted of a criminal charge, even though, he was granted benefit of probation, it was open to the respondents to refuse to take him back in service, because the service of police department is not like service of any other department. A person, who has been convicted of a criminal charge is definitely not fit to serve as police official/officer not even as an SPO". Justice Sanjay Dhar observed.
Case Title : Syed Afshana Bhat Vs University of Kashmir & Ors
Citation : 2022 LiveLaw (JKL) 175
The Jammu and Kashmir and Ladakh High Court ruled that period of ad hoc or temporary services of more than one year duration is provided to be counted for direct recruitment or promotion under Career Advancement Scheme of Teacher, subject to the condition laid down in Clause 10.1 of the UGC Regulations 2010.
Case Title : Bimla Ji Bhat & Ors Vs Union of India.
Citation : 2022 LiveLaw (JKL) 176
The Jammu and Kashmir and Ladakh High Court recently ruled that an employee cannot be denied medical reimbursement solely on the ground that he had undergone treatment in a speciality hospital by himself, which was not at all recognized or approved by the State or not included in the Government order.
"The amount of medical reimbursement is constitutional obligation towards sufferer which is a beneficial legislation in a welfare State for its employees, therefore, the rules and instructions formulated should be construed liberally in favour of the employees for granting them the relief rather than to adopt the wooden attitude to deprive the person of his/her dues."
Case Title: Murtaza Rashid Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 177
The Jammu and Kashmir and Ladakh High Court said that the disclosure of confidential and sensitive information in the grounds of detention of a person detained under Public Safety Act [PSA] can be counter-productive to the maintenance of normalcy in the Valley.
The bench of Chief Justice Pankaj Mithal and Justice Moksha Kazmi Khajuria observed:
"It may be worth noting that nothing more as revealed in the grounds of detention could have been spelt out as it would have been counter-productive to the maintenance of security of the State and normalcy in the valley. The situation in the valley does not permit disclosure of any further confidential or sensitive information which if goes in the hands of the separatist group would certainly be a great threat to the nation".
Case Title :Showkat Ahmad Rather Vs Government of J&K
Citation : 2022 LiveLaw (JKL) 178
The Jammu & Kashmir & Ladakh High Court ruled that an unaided private educational institution may qualify to be a "Public authority" amenable to writ jurisdiction of High Court, however, a mandamus will not be issued unless action of such authority complained of falls in the domain of public law as distinguished from private law.
"Simply because a private unaided institution is amenable to writ jurisdiction does not mean that every dispute concerning such private institution also becomes ipso facto amenable to writ jurisdiction," the court stated.
Case Title: Abdul Majeed Bhat Vs UT of J&K
Citation: 2022 LiveLaw (179)
The Jammu and Kashmir and Ladakh High Court ruled that merely because the FSL report did not accompany the charge sheet at the time of its presentation, it cannot be said that the charge sheet was incomplete or defective.
Conjoint reading of Section 36A of NDPS Act and Section 167 of Cr. P. C, it becomes clear that if an accused has been detained in connection with investigation of a case for a period of more than 180 days in an offence under NDPS Act, he is entitled to be released on bail if he is prepared to and does furnish bail unless the Special Court has extended the period of detention during investigation of the case beyond 180 days, recorded Justice Sanjay Dhar.
Case Title: Shameema Akhter Vs Abdul Jabbar Lone
Citation: 2022 LiveLaw (JKL) 180
The Jammu and Kashmir and Ladakh High Court ruled that in a suit for perpetual injunction, it is necessary for the plaintiff to establish the title for grant of perpetual injunction, claiming settled possession over the property in question.
"Injunction may be granted, even against the true owner of the property only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him except in due process of law", Justice M A Chowdhary recorded.
Case Title : Sajad Tariq and Ors Vs Com Secy Youth Service and Sports.
Citation : 2022 LiveLaw (JKL) 181
The Jammu and Kashmir and Ladakh High Court observed that there is a sound logic predicated in the interest of the candidates figuring in the waiting list and the intention behind is not to hold further selection for the post already advertised and to save the public exchequer from the unnecessary expenditure.
"The respondents cannot frustrate the intention behind and purpose of preparation of select list/ waiting list. It is not a case where the respondents have stopped at framing the wait list saying that it has been framed inadvertently and shall be deemed to have been cancelled, they have gone beyond and made it effective and issued the orders of engagement also", the bench added.
Case Title : Nazir Ahmad Ganai Vs State of J&K.
Citation : 2022 LiveLaw ( JKL) 182
The Jammu and Kashmir and Ladakh High Court reiterated that for arraigning an additional accused during the trial, there has to be much stronger evidence against him than mere probability of his involvement in the crime.
"Even a Magistrate, on taking cognizance of the offence which in his opinion has been committed by a person who is not before him and there is sufficient ground for proceeding against him, is empowered to issue process for summoning of such person under Section 204 of Cr. P. C. Section 190(1)(b) of the Cr. P. C does not restrict power of a Magistrate to proceed against an offender merely because in the police report his name is not sent up as an accused," Justice Sanjay Dhar explained.
Case Title : Rupesh Kumar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 183
The Jammu and Kashmir and Ladakh High Court reiterated that unexplained delay in execution of warrant of detention throws a serious and considerable doubt on the genuineness of subjective satisfaction of the Detaining Authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner.
Case Title: Bashir Ahmad Khan & Ors Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 184
Finding fault with the stance of the lower Court, the bench comprising Justice Rahul Bharti observed:
"Sections are substratum of the Code whereas the First Schedule bearing compartmentalization of the rules into Orders are the turf part of the Code at which processing and progression of stage wise adjudication/trial of a cause/suit/appeal before a civil court of law gets carried out and conducted to its finality."
Case Title: Bahu Builders and Traders Jammu Pvt. Ltd Vs J&K Dharmarth Trust and others.
Citation: 2022 LiveLaw (JKL) 185
The Jammu and Kashmir and Ladakh High Court reiterated that before deciding to drop proceedings in a criminal complaint, the Court has to be satisfied that the subject matter involved in the complaint is a purely civil wrong and that it has no criminal texture to it.
Case Title: Syed Akeel Shah Vs Directorate of Enforcement & Ors.
Citation : 2022 LiveLaw (JKL) 186
The Jammu and Kashmir and Ladakh High Court observed that Section 8(4) of the PMLA Act clearly provides that the authorized officer can forthwith take over possession of the attached property once the order of provisional attachment is confirmed by the Adjudicating Authority.
It clarified that the expression "forthwith" used in Section 8(4) of the Act denotes clear intention of the legislature not to wait for the period of limitation prescribed for filing of appeal under Section 26 of the Act.
Case Title: Ravinder Gupta Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 187
The Jammu and Kashmir and Ladakh High Court ruled that merely because a number of FIRs stand registered against a person he cannot be denied concession of bail, particularly, when his involvement in commission of a non-bailable offence is not prima facie shown from the contents of the FIR.
"It would be premature for this Court to deeply analyze the allegations made in the FIR lest it may prejudice the case of the prosecution. However, there appears prima facie merit in the submission made by the learned counsel for the petitioner that the dispute between the petitioner and the complainant appears to be essentially relating to demarcation of the land or at best a case of criminal trespass", the bench noted.
Case Title: Indra Thakur Vs State of J&K.
Citation: 2022 LiveLaw (JKL) 188
The Jammu and Kashmir and Ladakh High Court ruled that in the absence of any dishonest motive or intention on the part of public servant, criminal prosecution cannot be launched against him or her under the Prevention of Corruption Act.
Justice Sanjay Dhar while quashing the FIR to the extent of the petitioner for not disclosing commission of any cognizable offence by the petitioner concluded, "In the absence of any dishonest motive or intention on the part of the issuing authority and in the absence of any material to show that the petitioner had connived with the competent authority, it cannot be stated that any offence is made out against the petitioner".
Case Title : State of J&K Vs Bhumesh Sharma.
Citation : 2022 LiveLaw (JKL) 189
The Jammu and Kashmir and Ladakh High Court ruled that the power to compulsorily retire a government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest. Such an order cannot be passed merely on the recommendation of the committee devoid of departmental inquiry and sufficient material to form bona fide opinion by the competent authority, it added.
Case Title : S Rawail Singh Vs Gurinder Jeet Kour.
Citation : 2022 LiveLaw (JKL) 190
The Jammu and Kashmir and Ladakh High Court ruled that once a marriage stands validly dissolved by a competent foreign court, the "domestic relationship" between the parties as husband and wife, which is necessary to invoke the provisions of the Domestic Violence Act, also ceases.
Interpreting Section 2(f) of the Domestic Violence Act which defines 'domestic relationship', the bench explained that in the instant case there is no domestic relationship existing between the parties and when the domestic relationship is not existing between the parties the provisions of the Domestic Violence Act cannot be invoked.
Case Title : Ab Rasheed Bhat Vs HDFC Bank.
Citation : 2022 LiveLaw (JKL) 191
The Jammu and Kashmir and Ladakh High Court ruled that the production of original Power of Attorney is not necessary at the time of taking cognizance of the complaint under Section 138 of Negotiable Instruments Act.
A bench of Justice Sanjay Dhar observed,
"When the complainant/payee is a company, an authorised employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorised or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial".
Case Title : Syed Akeel Shah vs Directorate Of Enforcement.
Citation : 2022 LiveLaw (JKL) 192
The Jammu and Kashmir and Ladakh High Court observed that the question whether a particular case is of exceptional nature or not to warrant action under Section 8(4) of Prevention of Money Laundering Act can be determined only by the appellate authority at the time of considering the merits of the appeal and not by a Court in exercise of its writ jurisdiction.
Case Title : Shailender Parihar Vs Sarmad Hafez.
Citation : 2022 LiveLaw (JKL) 193
The Jammu and Kashmir and Ladakh High Court observed that the expression "Application of Mind" is not meant as a matter of usage for ritual sake but is a living principle of law out of which an administrative/ judicial/ quasi judicial decision, as the case may be, must bear its natural delivery.
Application of mind" used frequently in legal parlance, the bench observed that any public official/authority, be it judicial, quasi judicial and/or administrative one, who knows it as a fact that he is meant to judge/decide matters being part of the very constitution of the office/position held/occupied by him/it, must be made to know it compulsively and consciously without any miss that there is and will be an ever present institutional demand upon his/its understanding to make a decision, which if and upon being questioned, by any aggrieved person who is to suffer the effects of the given decision, is able to self exhibit its factuality and legality so evidently and expressly so as to test and tax the wit of the person in questioning the given decision. This is what is and will be meant in real sense and spirit an act of application of mind on the part of the maker of the judgment/decision, Justice Rahul Bharti expounded.
Case Title : Mohammad Anwar Chowdhary & Ors Vs UT of J&K.
Citation : 2022 LiveLaw (JKL) 194
The Jammu & Kashmir & Ladakh High Court upheld the amendments to the Jammu and Kashmir Reservation Rules, 2005, by which 4 percent reservation was provided to 'Pahari Speaking People' in respect of each service, class, category and grade in services and posts under the Union Territory.
Case Title : Green Valley Sumo Taxi Stand Union Vs UT of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 195
The Jammu and Kashmir and Ladakh High Court dismissed a plea seeking exemption from the requirement of installing Vehicle Location Tracking Devices (VLTD) and Panic Buttons in public service vehicles till establishment of Command and Control centres in the union territory.
Justice Sanjeev Kumar said the "court cannot issue a writ of mandamus to the authorities for acting contrary to the statutory Rules."
Case Title : Mohd. Bashir Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 196
Jammu & Kashmir and Ladakh High Court took suo moto notice of the lack of "even elementary knowledge" regarding land laws displayed by an Additional Deputy Commissioner in Rajouri district who is conferred with powers of Commissioner under the Agrarian Reforms Act, 1976 and that of Collector under the Land Revenue Act, 1996.
A bench of Justice Rahul Bharti thus directed the Financial Commissioner Revenue/ Commissioner, Agrarian Reforms to withdraw such powers from the concerned official.
Case Title: Ms. X (Minor) Vs. UT of J&K and others
Citation: 2022 LiveLaw (JKL) 197
The Jammu and Kashmir and Ladakh High Court directed a medical board in Srinagar to undertake a fresh examination of a minor rape victim to take a final call on her request for termination of pregnancy of 22-23 weeks.
"Should the respondents 2 and 3 on the basis of said medical opinion/report decide to undertake termination of pregnancy of the petitioner-victim, necessary measures be also taken for preserving of DNA samples of the fetus. Needless to mention here that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken," said Justice Javed Iqbal Wani in the order.
Case Title : Raheela Nazir Vs J&K EDI
Citation : 2022 LiveLaw (JKL) 198
The Jammu and Kashmir and Ladakh High Court ruled that an order of appointment with a stipulation that the services are terminable by one month's notice of either side loses its significance when it was not resorted to during the initial period of contract.
Case Title : Amina Begum Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 199
The Jammu and Kashmir and Ladakh High Court observed that unauthorized occupation by the state of an immovable property of its citizens gives recurring cause of action to the aggrieved citizen and therefore, delay and latches cannot come in the way of such citizen to assert his rights before constitutional court.
Elaborating on the application of Doctrine of Waiver and Doctrine of Estoppel to the case at hand the bench explained that state cannot plead adverse possession in respect of the land of its citizens under its unauthorized occupation and the plea of waiver and estoppel is not attracted in such situation.
Case Title: State of J&K through police station Zainapora vs Zia Mustafa and others
Citation: 2022 LiveLaw (JKL) 200
The Jammu & Kashmir and Ladakh High Court o allowed a revision petition of J&K Police in the 2003 Nadimarg massacre case — the verdict means the trial which had abruptly halted more than a decade back can now resume.
Justice Vinod Chatterji Koul ordered the trial court to take all necessary measures for ensuring examination of witnesses by "issuing commission and/or recording" their statements through videoconferencing.
The trial court shall ensure expeditious proceedings so as to conclude the matter at the earliest, said Justice Koul.
Case Title : Tanzeem Khursheed Zargar Vs J&K Special Tribunal & Ors.
Citation : 2022 LiveLaw (JKL) 201
Coming down heavily on a petitioner for "forum hunting" and suppression of material facts, the Jammu and Kashmir and Ladakh High Court imposed a penalty of Rs. 50000 on him.
The court ruled that a person may have a right to choose the forum for redressal of his grievance, but he/she cannot be permitted to choose two forums in respect of the same subject-matter for the same relief.
Case Title : M/s Swiss Garner Life Sciences & Ors Vs Union of India.
Citation : 2022 LiveLaw (JKL) 202
The Jammu and Kashmir and Ladakh High Court ruled that the report of a Government Analyst would become conclusive under Section 25(3) of the Drugs and Cosmetics Act, only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence in controversion of the report, within a period of 28 days.
Deliberating on the term "Conclusiveness" used in sec 25(3) of the Act the bench explained that the conclusiveness meant in Section 25(3) of the Act has reference to the person referred to in the said sub-section, meaning thereby that the facts stated in the report of the Government Analyst would become conclusive only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence regarding facts stated therein within a period of 28 days.
Case Title : Tamanna Vs Khushmeela
Citation : 2022 LiveLaw (JKL) 203
The Jammu and Kashmir and Ladakh High Court held that if correct address of the accused is mentioned in the complaint as well as in the notice of demand under Section 138 of the Negotiable instrument Act, then mere variation of address in the postal receipt will not lead to a presumption that the notice was sent on a wrong address.
"In these circumstances, the question whether the notice of demand has been actually received by the petitioner/accused can be determined only during the trial of the case," it said.
Case Title : Mst Mugli Begum & Ors vs Financial Commissioner & Anr.
Citation : 2022 LiveLaw (JKL) 204
The Jammu and Kashmir and Ladakh High Court reiterated that mutation entries are only fiscal in nature and these do not confer any title in respect of the property to which they relate nor do these entries extinguish the right of a party in respect of the said property.
"The title to an immovable property is to be established by the disputants before a civil court and not in mutation proceedings. The mutation is attested only in order to enable the Government to recover revenue from the person in whose favour the same is attested. These entries are always subject to the decree of a civil court of competent jurisdiction", the bench underscored.
Case Title : Shabir Ahmad Ganai Vs Ghulam Mohi Ud Din Wani
Citation : 2022 LiveLaw (JKL) 205
The Jammu and Kashmir and Ladakh High Court deprecated the practice of trial courts passing status quo orders in property suits in a routine manner, without specifying as to which of the parties to the dispute is in possession of the suit property.
Justice Sanjay Dhar held that while passing an interim order directing the parties to maintain status quo, the trial courts should in no uncertain terms record a tentative finding as to which of the parties is in possession of the disputed property.
Case Title: Jagdev Singh versus Union of India & Ors.
Citation: 2022 LiveLaw (JKL) 206
The Jammu & Kashmir & Ladakh recently refused to entertain a public interest litigation (PIL) petition seeking directions to declare Hindi as official language in the Union Territories of Jammu & Kashmir and Ladakh.
A bench comprising Chief Justice Ali Mohammad Magrey and Justice Vinod Chatterji Koul observed that the subject of the PIL squarely comes within the domain and powers of the executive.
207) Employee's Performance Is "Personal Information" Exempted U/S 8(1)(j) RTI Act: J&K&L High Court
Case Title : Kendriya Vidyalaya Sangathan & Ors Vs Central Information Commission
Citation : 2022 LiveLaw (JKL) 207
The Jammu and Kashmir and Ladakh High Court on Saturday reiterated that the "performance of an employee or an officer in an organisation is primarily a matter between the employee and the employer and falls within the meaning of personal information."
Normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest," the court said, adding, "On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual."
Case Title : Sajad Ahmad Bhat Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 208
The Jammu and Kashmir and Ladakh High Court ruled that in absence of the material supporting the allegations or specifying details of such incident, it cannot be held that some activities are prejudicial to the maintenance of peace, public order and tranquility and that too when there is not any whisper in the record substantiating these vague allegations.
Explaining the effect of not specifying the details in the impugned order the bench observed that since no particular incident, event or details have been reflected in the grounds of detention which is the basis for passing the impugned order, accordingly, the detenue has been denied of effective representation as the detenue is not aware of the material which has been applied against him while passing the order impugned.
Case Title : Divisional Manager JKSFC Bhaderwah Vs Mohammad Sharief
Citation : 2022 LiveLaw (JKL) 209
The Jammu and Kashmir and Ladakh High Court ruled that an appeal by an employer against an award of compensation under Section 30(1)(a) of the Workmen's Compensation Act is barred, unless it is accompanied by a certificate issued by Commissioner to the effect that the appellant had deposited the amount payable under the order appealed against.
"The certificate with respect to the payment of compensation under Section 30(1)(a) of the Act would be suffice and no certificate relating to the payment of interest or penalty under Section 30 (1) (aa) of the Act, would be required," Court said.
Case Title : Mehboob Ul Hussain Vs Jhasra Parvaiz
Citation : 2022 LiveLaw (JKL) 210
The Jammu and Kashmir and Ladakh High Court observed that the Principal Sessions Judge of a district has no jurisdiction to withdraw/recall a case, in which trial/hearing has commenced before an Additional Sessions Judge as provided in Section 409(2) of CrPC.
"Hearing in the appeal starts with the issuance of notice before the 2nd Additional Sessions Judge Srinagar, therefore, learned Principal Sessions Judge Srinagar was not having any power or jurisdiction to withdraw or recall the appeal assigned to the court of learned 2nd Additional Sessions Judge Srinagar, therefore, recalling of the order which has been made the basis for transfer of this case, in the considered opinion of this Court has been passed without jurisdiction by the learned Principal Sessions Judge Srinagar", the bench underscored.
Case Title : Abdul Rashid Dar & Anr Vs Reyaz Ahmad Kuchay
Citation : 2022 LiveLaw (JKL) 211
The Jammu and Kashmir and Ladakh High Court reiterated that if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend a summary suit under Order 37 CPC cannot be granted unless the amount so admitted to be due is deposited by the defendant in the court
Case Title : Azra & ors Vs Mohammad Afzal Baghat
Citation : 2022 LiveLaw (JKL) 212
The Jammu and Kashmir and Ladakh High Court ruled that the witnesses examined by one party cannot be allowed to be examined on behalf of the opposite party at its instance under Section 540 J&K CrPC (akin to sec 311 of central CrPC).
Justice M A Chowdhary observed, "The question to be decided by the learned trial Magistrate was as to whether the witnesses examined by the complainants can be asked to appear as witnesses for the defence. Even if the learned Magistrate was of the view that certain clarifications were required to be made by these witnesses while being cross examined and re-examined during trial, it could not be legally tenable to call these witnesses on behalf of the opposite party. At the most these witnesses could have been summoned as complainants' witnesses for their further cross examination, if same was required."
Case Title : Iqbal Jaffar Dar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 213
The Jammu and Kashmir and Ladakh High Court observed that only a couple of criminal activities attributed to a detenue, which took place in the past, cannot be made basis for passing a detention order unless it is established from the detention record that the detenue was continuously indulged in felonious activities of similar nature.
Case Title : Sheikh Feroz Ahmad Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 214
The Jammu and Kashmir and Ladakh High Court ruled that merely because an FIR/charge-sheet incorporates the provision of Section 307 IPC, it would not by itself be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties.
Justice M A Chowdhary observed that while taking a call as to whether compromise in such cases should be effected or not the Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties, the bench underscored.
Case Title : Hotel Corporation of India Ltd Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 215
The Jammu and Kashmir and Ladakh High Court observed that disputes between the two limbs of Government of India should not be brought to the Court, to be fought for years at the expense of public exchequer. "It would be desirable to relegate the parties to the Administrative Dispute Resolution Mechanism provided under the Office Memo" , the court observed.
216) J&K Road Transport Corporation Employees Not Entitled To Pensionary Benefits: High Court
Case Title : UT of J&K & Ors V/s All J&K Workers Union SRTC and another J&K Road Transport Employees Association & Anr.
Citation : 2022 LiveLaw (JKL) 216
The Jammu & Kashmir and Ladakh High Court declined pensionary benefits to the retired employees of J&K State Road Transport Corporation (JKSRTC) while holding that the employees appointed by the Corporation were not entitled to the same at par with the government employees.
Case Title : Phool Chand Vs Narcotics Control Bureau.
Citation : 2022 LiveLaw (JKL) 217
The Jammu and Kashmir and Ladakh High Court reiterated that merely because Section 37 of the NDPS Act comes into play where commercial quantity of contraband is involved, it does not mean that the accused cannot be entitled to bail whatever may be the circumstances that may be borne out from the record.
Elaborating on the rigours prescribed under Section 37 NDPS Act, Justice Puneet Gupta observed that 'reasonable grounds' must be shown for believing that the accused is not guilty of offence under Section 19 or Section 24 or Section 27 and also for offences involving commercial quantity and is not likely to commit any offence while on bail.
Case Title : Sanjay Raina Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 218
The Jammu and Kashmir and Ladakh High Court reiterated that in order to ascertain the claims of juvenility, courts should give priority to the certificate issued by the educational institution other than play school which was firstly attended by the accused.
The observations came from a bench comprising Justices M A Chowdhary while hearing a revision petition against order of Additional Sessions Judge which upheld Magistrate's decision that the petitioner/appellant was not a juvenile.
219) J&K&L High Court Refuses To Quash FIR Against Kashmir Walla Editors
Case Title: Shah Fahad Peerzada and another vs UT of JK and others
Citation: 2022 LiveLaw (JKL) 219
Dismissing a petition filed by the editors of a Valley-based news portal The Kashmir Walla for quashing of an FIR registered against them last year, the Jammu & Kashmir and Ladakh High Court said the case requires an investigation to find out whether the offences have been committed or not.
Justice Vinod Chatterji Koul in the judgment pronounced on November 17 said: "Since the allegations contained in the complaint on the basis of which the FIR in question has been registered allege commission of offences punishable under Section 153, 505 IPC, which requires to be investigated by the police and during the investigation, the defence which may be available to the petitioners can be taken and after the investigation is concluded, the police has to find out whether or not offences for which the FIR has been registered are made out or not."
Case Title : Shashi Paul Singh Vs Gurmeet Paul & Anr.
Citation : 2022 LiveLaw (JKL) 220
The Jammu and Kashmir and Ladakh High Court reiterated that once a person enters into wedlock and decides to raise a family, he cannot turn around and say that he is not ready to perform his moral and legal obligation flowing out of the wedlock as he is in no mood to earn livelihood.
A bench of Justice Vinod Chatterji Koul relied on Vikram Jamwal v. Geetanjali Rajput and another (2010) 1 JKJ 236 and observed, "It is for the person to decide to marry or not to marry, but once a person decides to marry, he is duty bound to perform all the duties and discharge all obligations that the society and law expect and require him to discharge".
Case Title : Hafiza Begum & Ors Vs Shams Din Bhat & Ors.
Citation : 2022 LiveLaw (JKL) 221
The Jammu and Kashmir and Ladakh High Court reiterated the difference between non-disclosure of cause of action and defective cause of action. It clarified that while the former comes within the scope of Order 7 Rule 11, the latter is to be decided during the trial of the suit.
"The settled principles law laid down by the Apex court for rejection of plaint and also as envisaged under Order VII Rule 11 clause (a) has been that a plaint shall be rejected where it does not disclose a cause of action. No ground like the one defectively pleaded cause of action has been either provided in order VII Rule 11 CPC or else in any of the pronouncements of the Apex court (supra) for rejection of the plaint." the court said.
Case Title : Showkat Ahmad Najar & Ors Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 222
The Jammu and Kashmir and Ladakh High Court observed that the security of work should, as far as possible, be assured to the employee so that he may contribute the maximum efforts for the development.
Justice Moksha Kazmi Khajuria observed, "Government in particular should not allow workers to remain as temporary employees for an unreasonable long period of time; this kind of exploitation of decades makes a temporary employee suffer to the great extent."
Case Title : Dr SI Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 223
The Jammu and Kashmir and Ladakh High Court dismissed a petition filed by a woman officer of the J&K Administrative Services (JKAS) seeking to quash the enquiry proceedings initiated against her by the Anti Corruption Bureau, Srinagar in pursuance of an anonymous complaint.
"This is not the aim and objective of provisions of Section 482 Cr. P.C. more particularly when petition on hand does not unveil any ground muchless cogent or material one, to indicate that the inherent powers are to be exercised to prevent abuse of process of law and to secure ends of justice", the bench maintained.
Case Title : Rajesh Gupta Vs Union of India
Citation : 2022 LiveLaw (JKL) 224
The Jammu and Kashmir and Ladakh High ruled that Court mere registration of an FIR or pendency of investigation by the Investigating Agency is no ground to refuse issue or renewal of passport under the Passport Act 1967.
"There is not even an iota of doubt that registration of FIR and the investigation taken thereupon by the investigating agency cannot be said to be the proceedings pending before a criminal Court in India to attract disqualification laid down in Clause (f) of Sub Section (2) of Section 6 of the Passport Act", the court maintained.
Case Title : Dr Kuldeep Chander Sharma & Anr Vs Union of India
Citation : 2022 LiveLaw (JKL) 225
The Jammu and Kashmir and Ladakh High Court ruled that doctors who possess one of the medical qualifications recognized under the Indian Medical Council Act, 1956 and have experience of not less than two years in the field of sex selection or pre-natal diagnostic techniques fall within the ambit of term "medical geneticist".
It held that medical geneticists shall not be under an obligation to undergo any training or competency based assessment test and hence they are exempted from the operation of Preconception and Pre-natal Diagnostic Techniques (Prevention of Sex Selection) (Six Months Training) Rules, 2014.
Case Title : Jagdish Giri Vs Talib Hussain
Citation : 2022 LiveLaw (JKL) 226
The Jammu and Kashmir & Ladakh High Court has said that unlike in the cases of malicious prosecution relating to criminal proceedings no action can be brought as a general rule in the cases of civil proceedings even though the same are malicious and have been brought without any reasonable cause.
"It is only in exceptional circumstances that a suit for damages on account of malicious prosecution in civil proceedings can be maintained,"Justice Sanjay Dhar added.
Case Title : Mst Mala Begum Vs State of J&K
Citation : 2022 LiveLaw (JKL) 227
The Jammu and Kashmir and Ladakh High Court while awarding Rs 24 Lakh to a woman left crippled because of a High Voltage electric shock observed that authorities manning dangerous commodities like electricity have an extra duty to take all measures to prevent any mishap.
"It is their statutory duty to ensure that no mishap takes place on account of lack of proper maintenance of these installations. The fact that the wooden cross of HT Frame of the transmission line had broken which resulted in sagging of conductor to a lower level shows that the field officials of the respondent Department have failed in their duty to check and supervise the transmission line", the court maintained.
Case Title : Kala Ram & Ors Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 228
The Jammu and Kashmir and Ladakh High Court expressed regret over the manner in which the Police establishment had "usurped" a private property for its use back in 2013, "dictated" its rent and continued in illegal occupation till 2018 until it was no longer of use to them.
Single bench of Justice Rahul Bharti remarked,
"J&K Police had lot to explain its conduct, rather misconduct in real terms, and still it has not dawned upon it to reconcile and make amends... on the acts of omission and commission of the erring police officials concerned in literally having acted as medieval time zamindar to overpower a private property."
Case Title : Ajay Pratap Vs UT of J&K and Ors.
Citation : 2022 LiveLaw (JKL) 229
The Jammu and Kashmir and Ladakh High Court called out the "Quick Fixes" resorted to by the police during criminal investigations, holding that investigations must be conducted within the domain of "Facts in Issue" and "Relevant Facts".
A single bench comprising Justices Rahul Bharti observed,
"Police Investigation acts with relish to exhibit its harassment bearing power of investigation aiming more to quick fix the facts into its view point of accusation but faintly knows the province of investigation out of which the full facts are to be drawn out to prove the script of the crime in all its details...If a given Police Investigation has least bothered to follow the script of said two domains, then in the name of Police Investigation what is taking place would be nothing but paper collection and compilation venture by the Investigation Officer so as to claim the service credit of having prepared and submitted a police report/challan in a court of law unmindful of its soundness and sustainability in a court of law."
Case Title : M/s Shree Guru Kripa Alloys Pvt. Ltd. Vs State of J&K
Citation : 2022 LiveLaw (JKL) 230
The Jammu and Kashmir and Ladakh High Court ruled that retrospective operation of a Government Order cannot be permitted particularly where it is merely an executive order, and not a legislation.
A bench comprising Justice Waseem Sadiq Nargal observed,
"As every Government/executive order by virtue of a policy has prospective operation, it can in no way be applied retrospectively by infusing life in a Government order and interpreting differently, when the explicit language leads to an irresistible conclusion".
231) Borrowing Department Liable To Disburse Salary Of Employee Sent To It On Deputation: JKL High Court
Case Title : Abass Ali Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 231
The Jammu and Kashmir and Ladakh High Court reiterated that an employee sent on deputation from his parent department to the borrowing department at the request of the borrowing department is the liability of the borrowing department and hence they are accountable for salary of the employee.
Case Title : Ram Gopal Meena Vs CBI
Citation : 2022 LiveLaw (JKL) 232
The Jammu and Kashmir and Ladakh High Court ruled that merely because preliminary enquiry has taken a long time to complete, the same cannot be said to have vitiated the criminal proceedings initiated in a corruption case, particularly when no prejudice has been caused to the accused by such act of the enquiry officer.
Case Title : Rohit Sharma Vs State of J&K
Citation : 2022 LiveLaw (JKL) 233
The Jammu and Kashmir and Ladakh High Court reiterated that a successful prosecution of a criminal case in a court of law is not based on the length of continuing custody of a suspect or an accused during the course of investigation.
A bench comprising Justice Rahul Bharti observed, "A successful prosecution of a criminal case in a court of law is based upon quality of police investigation with respect to the facts and circumstances of the case attending the commission of offences and not by length of continuing custody of a suspect or an accused during the course of investigation. An investigation authority is bound to show and demonstrate on factual basis as to how if an accused is admitted to bail in a case before finalization of police investigation and consequent presentation of police report under section 173 Cr. P.C, 1973, the investigation work is likely to suffer hurdles/obstacles to the prejudice of taking the investigation to the truth of the matter".
Case Title : Mtr Mehmooda Vs State of J&K
Citation : 2022 LiveLaw (JKL) 234
The Jammu and Kashmir and Ladakh High Court reiterated that if an appointment is non-est in the eyes of law or is based upon forgery and fraud, it is not necessary for the employer to hold an enquiry before terminating the services of such an employee.
Case Title : M/S Doon Caterers Dehradun Uttrakhand Vs Union of India
Citation : 2022 LiveLaw (JKL) 235
The Jammu and Kashmir and Ladakh High Court ruled that final relief cannot be granted under Section 9 of the Arbitration and Conciliation Act, 1996 as proceedings under the said provision are of interim measure and are not meant for enforcement of the conditions of the contract, which can be done only when the rights of the parties are finally adjudged or crystallized by the arbitrator.
Explaining the law applicable to the instant subject Justice Nargal observed, "The proceedings of Section 9 of the Act is by way of an interim measure and are not meant for enforcement of the conditions of the contract as it would be done only when the rights of the parties are finally adjudged or crystallized by the arbitrator. Section 9 proceedings which are for interim measures cannot be converted into the proceedings where a party may seek indirectly a final relief but nature of the conditions incorporated in the terms and conditions of the agreement, its scope and merit in-law and its applicability, are all questions to be examined by the arbitrator in accordance with law".
Case Title : Kamlesh Devi & Ors Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 236
The Jammu and Kashmir and Ladakh High Court recently reiterated that a judicial magistrate is not competent to order re-investigation in a case nor is he empowered to transfer the case from one investigating agency to another.
Justice M A Chowdhary observed, "No other Court except the Superior /Constitutional Courts is vested with the powers to order reinvestigation or transfer investigation of a case from one agency to another, to secure the ends of justice."
Case Title : Ali Mohammad & Ors Vs State of J&K
Citation : 2022 LiveLaw (JKL) 237
While setting aside a series of orders and judgments inadvertently passed against a dead man, the Jammu and Kashmir and Ladakh High Court observed that it is empowered to correct its mistakes, no matter the delay.
"No delay is too long/late for the Court to do course correction for its own wrong/mistake/error so as to undo the effects and restore the justice...Court only enhances its prestige when it acknowledges and amends any wrong/mistake/error, be it advertent/inadvertent on its part in the course of a legal proceedings causing prejudice to a litigant in the lis before it," a Division bench of Justices Rajnesh Oswal and Rahul Bharti said.
Case Title : Murad Ali Sajan & Ors Vs UT of J&K.
Citation : 2022 LiveLaw (JKL) 238
The Jammu and Kashmir and Ladakh High reiterated that an ad hoc employee cannot be replaced by another ad hoc employee; such position can be filled only by a candidate who is regularly appointed by following a regular procedure prescribed.
Expounding further on the matter Justice Dhar recorded, "It may be correct to say that the petitioners are not entitled to seek extension of their contractual engagement but at the same time the respondents' action of replacing the academic arrangement by another similar arrangement cannot be countenanced in law. The respondents can only replace the petitioners by filling up the vacant posts of Staff Nurses on substantive basis, which they have not chosen to do".
239) No Blanket Bar On Judicial Review Of Decisions Made By Election Authority: JKL High Court
Case Title : Abida Afzal Vs State Election Commission & Ors.
Citation : 2022 LiveLaw (JKL) 239
The Jammu and Kashmir and Ladakh High Court recently ruled that there is no blanket bar to the judicial review of decisions made by an Election Authority but it is only those decisions which have the effect of retarding, interrupting, protracting or stalling the completion of the election process that can be challenged in the writ jurisdiction.
A bench comprising Justice Sanjay Dhar observed, "Anything done towards completion of election process cannot be challenged before the High Court and it is only if it is shown that the Election Authority has exercised its power arbitrarily and such action has the effect of stalling the election process, the same can be challenged by way of a writ petition".
Case Title : Vinkal Sharma & Ors Vs UT of J&K and Ors.
Citation : 2022 LiveLaw (JKL) 240
The Jammu and Kashmir and Ladakh High Court on Thursday quashed the ongoing recruitment process for Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) and directed the UT Government to constitute a high level Committee headed by not less than a retired High Court Judge to enquire into the conduct of Jammu and Kashmir Service Selection Board.
Case Title : S. K. Bakshi Vs Punjab National Bank & Ors
Citation : 2022 LiveLaw (JKL) 241
The Jammu and Kashmir and Ladakh High Court ruled that a Bank can auction the property even with encumbrances attached to property under the SARFAESI Act but it is incumbent upon the Bank to disclose the encumbrances and litigations attached to the property to all the persons who want to participate in the same and to the successful bidder.
A bench comprising Justice Sindhu Sharma observed, "By including a clause of" as is where is‟ it would not be sufficient for respondent bank from disclosing encumbrances or handing over the property to the petitioner".
Case Title : Laxman Das Vs Union of India & Ors
Citation : 2022 LiveLaw (JKL) 242
The Jammu and Kashmir and Ladakh High Court has reiterated that an enquiry officer cannot return a finding on the allegation which is not part of the chargesheet.
A bench comprising Justice Sanjeev Kumar observed, "The mandate of the enquiry officer holding disciplinary enquiry is to conduct enquiry into the charges framed against the delinquent and restrict his finding to the charges framed. He cannot return his findings beyond the terms of his reference i.e., beyond the charges to be investigated or enquired into.
Case Title : Khalid Zahoor Khan Vs UT of J&K & Ors
Citation : 2022 LiveLaw (JKL) 243
The Jammu and Kashmir and Ladakh High Court ruled that a mere recommendation by the Selection Committee for enlarging the wait list, without there being a decision of the Government in accepting the said recommendation, does not give any right on the concerned candidates to seek enlargement of the waiting list.
Case Title : Masrat Yousuf Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 244
The Jammu and Kashmir and Ladakh High Court reiterated that where a person is engaged in a statutory corporation on the basis of a special contract, Article 311 has no application. The provision relates to dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
"The engagement of the petitioner seemingly is an ordinary case of a service contract terminable at any time under the terms provided therein the engagement order. Thus, the case setup by the petitioner and the contention of the counsel for the petitioner urged in this regard in general and the applicability of the provisions of Article 311 of the Constitution in particular therefore, is not entertainable in law", Justice Javed Iqbal Wani held.
Case Title : Meraj Ud Din Malik Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 245
The Jammu and Kashmir and Ladakh High Court recently clarified that the exchange of proprietary land in lieu of encroached kahcharai (grazing) land is not permissible anymore.
The clarification was issued by a bench of Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had sought directions upon the respondents for grant of permission in his favour for exchange of six marlas land Kahcharai land at Kawarhama Baramulla district in lieu of proprietary land of same area in the vicinity.
Case Title : Bashir Ahmad Bhat & Ors Vs Syed and Ors.
Citation : 2022 LiveLaw (JKL) 246
The Jammu and Kashmir and Ladakh High Court observed that the Deputy Commissioner/ District Collector is neither the Government nor the authority competent to record the satisfaction as to whether a particular land is needed for public purpose or not as mandated under Section 6 of J&K Land Acquisition Act, 1990.
Case Title : Aatif Irshad Kumar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 247
The Jammu and Kashmir and Ladakh High Court awarded compensation of Rs 30.2 lakhs to a five-year-old boy disabled for life by 33,000 KV HT line laid by the Power Development Department (PDD). The liability for negligence cast upon the functionaries of the State would lie within the parameters of "strict liability" under law of Torts, the Court reiterated.
Case Title : Harvinder Pal Singh alias Rambo Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 248
The Jammu and Kashmir and Ladakh High Court ruled that a preventive detention order can be challenged at the pre execution stage, provided the petitioner/detenue satisfies the court that the detention order is clearly illegal.
The bench comprising Justices Rajnesh Oswal and Puneet Gupta, while hearing an appeal against dismissal of plea to quash preventive detention, observed:
"If it is found that it is clearly illegal then certainly he cannot be asked to go to jail and then challenge the detention order. The appellant must be able to demonstrate that the order of detention is ex facie illegal on the grounds as mentioned in the Alka Subash Gadia's case (supra)..."
Case Title : Javaid Ahmad Sheikh Vs Mohammad Iqbal Thoker
Citation : 2022 LiveLaw (JKL) 249
The Jammu and Kashmir and Ladakh High Court reiterated that the contention raised by a petitioner, if not specifically denied by the Respondent in his reply, could only draw an inference that the contention of the Petitioner is being admitted by the Respondent.
The bench comprising Justice Javed Iqbal wani made the observation while allowing the plea moved by the Petitioner for transfer of a criminal case filed against him under Section 138 of NI Act before Sub Judge at Pulwama, apprehending physical danger from Respondent (complainant).
Case Title : Desh Rattan Dubey Vs Board of Cricket Control In India.
Citation : 2022 LiveLaw (JKL) 250
The Jammu and Kashmir and Ladakh High Court dismissed a plea requiring BCCI to initiate the process of amendment of constitution of J&K Cricket Association and to hold fresh elections of the body.
A bench comprising Acting Chief Justice Tashi Rabstan and Justice Puneet Gupta dismissed the plea as non-maintainable, stating that it was a miscellaneous application filed in a disposed of case. The bench reiterated that when proceedings stand terminated by final disposal of writ petition, it is not open to the Court to reopen the proceedings by means of a miscellaneous application, particularly in respect of a matter, which provide a fresh cause of action.
Case Title : Mafooza Bano Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 251
The Jammu and Kashmir and Ladakh High Court reiterated that as corollary to the restoration of a writ petition, dismissed in default, all orders passed would automatically get revived and restored to the original position.
Case Title : Javid Ahmad Akhoon & Ors Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 252
The Jammu and Kashmir and Ladakh High Court on Thursday observed that the Government can place necessary restrictions for smooth functioning of a particular trade, however, such restrictions must not be unreasonable particularly when the same are aimed to regulate the trade of unemployed skilled youth of a troubled area.
The bench observed,
"Skill cannot be restricted to a particular age especially in today's advanced era and it does not further appear to be achieving any kind of object, not to speak of a reasonable object. The condition in respect of deposition of annual fee of Rs. 10,000/- also appears to be unreasonable as the petitioners are admittedly performing their professional duties in the tourist areas and are solely dependent upon the tourist inflow which obviously lasts for only few months".
Case Title: Bajaj Allianz General Insurance Co. Ltd Vs Gulshan Kumar and Ors.
Citation: 2022 LiveLaw (JKL) 253
The Jammu and Kashmir and Ladakh High Court on Wednesday ruled that compensation paid under the "No Fault liability" provision is adjustable in the compensation claimed for fault liability under Section 166 of the Motor Vehicles Act, 1988.
Nonetheless, the bench clarified that any compensation made under the No-Fault liability provision is adjustable in the compensation claimed fault liability under section 166 of the Motor Vehicles Act, 1988.
Case Title : Akona Engineering Private Ltd Vs Pal Construction and another.
Citation : 2022 LiveLaw (JKL) 254
The Jammu and Kashmir and Ladakh High Court recently reiterated that State Consumer Commissions and District Consumer Forums are not empowered to exercise powers of review and set aside ex parte orders unless a statute empowers them for the same.
Case Title : Royal Singh Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 255
The Jammu and Kashmir and Ladakh High Court observed that a District Magistrate while passing the order of detention cannot describe the period of detention of the detenue, because it is the Government which after approving the detention provides the period till the detenue would be detained.
A bench comprising Justice Wasim Sadiq Nargal observed,
"Section 17(1) of J & K Public Safety Act empowers the Government to confirm the detention order and may direct the continuation of the detention of a person concerned for such period as it thinks fit. Section 18 of the J&K Public Safety Act states that the maximum period of detention of the detenue is subject to the confirmation of Advisory Board".
Case Title : Abdul Aziz Bhat Vs Mohammad Iqbal Bhat & Ors.
Citation : 2022 LiveLaw (JKL) 256
The Jammu and Kashmir and Ladakh High Court ruled that while allowing amendment of a written statement the general principle is that the amendment should be allowed even if it amounts to addition of new grounds of defense, substituting or altering a defence or taking inconsistent pleas in the written statement.
A bench comprising Justice Sanjay Dhar however made it clear that "the same principle cannot be applied while considering an application for amendment of a plaint as the same stands on a different footing. Adding, altering or substituting a new cause of action in the plaint is certainly objectionable".
Case Title: Mohammad Ayoub Dar Vs State of J&K
Citation: 2022 LiveLaw (JKL) 257
The Jammu and Kashmir and Ladakh High Court ruled that the provisions of the National Investigation Act (NIA Act) Act do not prohibit the investigation of the Scheduled offences which include the offences under the ULA(P) Act, by Local Investigating Agencies.
Justice Sanjay Dhar observed,
"It only provides that when a Scheduled offence is investigated by a local investigating agency, the same has to be tried by a Special Court constituted under Section 22 of the Act".
258) Writ Jurisdiction Cannot Override Efficacious Statutory Dispensation: JKL High Court
Case Title : Bindu Singh Jamwal Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 258
The Jammu and Kashmir and Ladakh High Court reiterated that where statutory remedy is created by law, the writ petition should not be entertained ignoring the statutory dispensation, unless it is inefficacious.
A bench comprising Justice Wasim Sadiq Nargal observed,
"Where a right or liability is created by a statute, which provides for a speedy remedy for enforcing it, the remedy provided by the said statute alone should be availed of".
Case Title : M/s S. S. Industries, Shanker Colony, Gangayal Vs UT of J&K and Ors.
Citation : 2022 LiveLaw (JKL) 259
Dismissing a plea challenging a closure order of the petitioner's unit/premises by the J&K Pollution Control Board, Justice Rahul Bharti of the Jammu and Kashmir High Court observed,
"Patience to put up with the violations and the violators of the ecological environment has now run dry. The law needs to take charge, and in fact has taken charge, of the situation to deal with the environment-related violations and violators impatiently and for that the enforcers of the law need to be fast paced as in the present case where the law enforcers have acted with promptness and preemptively and this is what is serving the call of duty to protect the environment".
Case Title : Kanwarjit Singh Vs UT of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 260
The Jammu and Kashmir and Ladakh High Court on ruled that a 'Letter of Intent' is only a form of an invitation to offer and does not confer any rights in the favour of the person of whom it is issued.
A bench comprising Justice Wasim Sadiq Nargal observed,
"Letter of Intent is only a formality of initiation of process and right to claim grant of lease and execution of formal lease deed would accrue to the concerned person only if the requisite formalities as envisaged under the Mining Rules are completed. Moreover, the recipient of Letter of Intent cannot create prospective/ futuristic right out of his own free will with regard to mining lease".
Case Title : National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs 3rd Additional Sessions Judge District Court Jammu.
Citation 2022 LiveLaw (JKL) 261
The Jammu and Kashmir and Ladakh High Court ruled that Criminal Court within whose jurisdiction the crime is committed and in respect whereof a production warrant is sought under Section 267 CrPC cannot reject the application for production warrant simply on the ground that no case is pending before it.
262) JKL High Court Refuses Security To A Man Apprehending Harm Over Rumours Of Being 'BJP Agent'
Case Title : Yang Burz Home vs UT of J&K and Ors
Citation : 2022 LiveLaw (JKL) 262
The Jammu and Kashmir and Ladakh High Court declined intervention in a plea seeking a direction upon the government to provide security cover to the Petitioner as there are rumors in his locality that he is a 'BJP agent'.
A bench of Justice Vinod Chatterji Koul observed that the authorities had already made a threat assessment and did not find it necessary to provide him personal security.
Case Title: Khalida Salman Vs Sahil Ahmad Dar.
Citation: 2022 LiveLaw (JKL) 263
The Jammu and Kashmir and Ladakh High Court ruled that there is no provision in the Code of Civil Procedure which permits a party beginning to lead evidence in rebuttal on an issue, the onus of proof of which lies on it.
A bench comprising Justice Sanjay Dhar observed,
"If out of several issues, burden to prove some of the issues lies on the other party, then the party can begin, at his option and either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. In the latter case, the party beginning may produce the evidence in rebuttal to the evidence led by the other party only on those issues the burden of proof whereof lies on it"
Case Title: Life Insurance Corporation Of India & Anr Vs Hamida Bano & Anr.
Citation: 2022 LiveLaw (JKL) 264
The Jammu and Kashmir and Ladakh High Court upheld a Consumer Commission order wherein it was held that in cases where the death of the insured has occurred due to injuries suffered from a fall, the registration of FIR may not be required for processing the life insurance claim.
"We are entirely in agreement with the Commission that in the case of this nature, the registration of FIR is not a sin qua non for processing the case under the policy of life insurance. Moreso, when there is other evidence in abundance to demonstrate that the deceased insured had died in an accident," said the court.
Case Title: Dr. RK Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 265
The Jammu and Kashmir and Ladakh High Court reiterated that a person who participates in enquiry proceedings without any demur and later on challenges the constitution of the enquiry committee after finding that the result of the enquiry has gone against him, is not entitled to do so.
Case Title : M/S Construction Engineers
Citation: 2022 LiveLaw (JKL) 266
The Jammu and Kashmir and Ladakh High Court ruled that a challenge to the notices issued by the Assessing authority under Section 226 (3), without challenging the intimation of demand made by the Assessing authority under Section 200A of the Income Tax Act is not maintainable.
Case Title: M/S Rashmi Metaliks Ltd. & Anr Vs M/S Jindal Saw Ltd. & Ors.
Citation: 2022 LiveLaw (JKL) 267
Reiterating that powers of the court under Section 482 Cr.P.C are to be exercised with great amount of caution the J&K&L High court held that under the said provision the Court cannot examine the correctness of the allegations in a compliant except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.
Case Title : Prof. S. K. Bhalla Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 268
The Jammu and Kashmir and Ladakh High Court on Monday dismissed a plea filed by ex-minister Chaudhary Lal Singh against evicting him from the government-allotted bungalow in Jammu's Gandhi Nagar.
Adjudicating upon the matter Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri observed that security assessment and entitlement to government accommodation are two different issues and cannot be intermingled to defeat the process of law.
269) Settled Legal Position That Medical Negligence Can Only Be Gauged By Field Experts: J&K&L High Court
Case Title : Pooja Sharma & Ors Vs State of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 269
The Jammu & Kashmir & Ladakh High Court while answering a question as to how the negligence of a professional doctor is to be gauged, maintained that only experts can certify negligence on the part of the doctor.
Case Title: Mohd Yousuf Vs UT of J&K.
Citation: 2022 LiveLaw (JKL) 270
Setting aside an order directing Anti Corruption Bureau to inquire how a litigant managed to get hold of the detention order and certain official communication prior to execution of the order, the Jammu and Kashmir and Ladakh High Court on Wednesday said such documents issued by a public servant are supposed to be in a public domain and they were neither classified nor relating to official secrets.
Case Title : Suresh Gyan Vihar University Vs Union of India & Ors.
Citation: 2022 LiveLaw (JKL) 271
The Jammu & Kashmir and Ladakh High Court dismissed a Jaipur-based University's plea for reimbursement of the expenses incurred by it with regard to tuition fee, hostel fee and cost of books after admitting the students from Jammu & Kashmir under the Prime Minister's Special Scholarship Scheme for J&K Students.
Justice M A Chowdhary said merely because the students are from J&K, will not give any cause of action to file the writ petition before the high court.J&K
Case Title:Jammu Municipal Corporation Vs Mohd Nadeem & Anr.
Citation: 2022 LiveLaw (JKL) 272
Taking serious note of the increasing encroachments of public roads and streets in Jammu and Kashmir, the High Court on Tuesday directed the J&K Government and Jammu Municipal Corporation to ensure that no structure of any kind is allowed or permitted to be raised on public road, street, pathway and lane.
The division bench of Acting Chief Justice Tashi Rabstan and Justice Rajesh Sekhri said if any such structure has been erected or re-erected within a period of last five years, the same shall be removed forthwith and in case of any fresh encroachments, the Deputy Commissioners and Superintendents of Police of that area shall be held responsible.
Case Title: United India Insurance Company Vs Ghulam Nabi Bhat & Ors.
Citation: 2022 LiveLaw (273)
The Jammu and Kashmir and Ladakh High Court on Friday clarified that 'cause of action' in an insurance case can also accrue on the date the claim lodged by the insured is repudiated by the insurance company.
The court said the Supreme Court in Kendimalla Raghavaiah & Co. V.s Nationa Insurance Co. and ors has held that with reference to a fire insurance policy, the date of accrual of cause of action has to be the date on which the fire breaks out. However, it added that the apex court has not adverted to the fact that the cause of action may in some cases accrue on more than one occasion and on different date.
Case Title : Akash Karka Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 274
Dismissing a plea of habeas corpus petition, the Jammu & Kashmir and Ladakh High Court on Friday observed that failure on the part of detaining authority to supply a translated copy of detention order does not vitiate the detention.
A bench of Justice Wasim Sadiq Nargal said:
"From a bare perusal of the provisions of the Public Safety Act, 1978 dealing with preventive detention, read with the constitutional mandate under Article 22(5) of the Constitution of India, I do not find that such requirement is mandatory and failure on part of detaining authority to supply translated copies in all cases vitiates the detention."
