J&K&L High Court Monthly Digest: November 2022 [Citations 201 - 227]

Tanzeem Khursheed Zargar Vs J&K Special Tribunal & Ors 2022 LiveLaw (JKL) 201

M/s Swiss Garner Life Sciences & Ors Vs Union of India 2022 LiveLaw (JKL) 202

Tamanna Vs Khushmeela 2022 LiveLaw (JKL) 203

Mst Mugli Begum & Ors vs Financial Commissioner & Anr 2022 LiveLaw (JKL) 204

Shabir Ahmad Ganai Vs Ghulam Mohi Ud Din Wani 2022 LiveLaw (JKL) 205

Jagdev Singh versus Union of India & Ors 2022 LiveLaw (JKL) 206

Kendriya Vidyalaya Sangathan & Ors Vs Central Information Commission 2022 LiveLaw (JKL) 207

Sajad Ahmad Bhat Vs UT of J&K 2022 LiveLaw (JKL) 208

Divisional Manager JKSFC Bhaderwah Vs Mohammad Sharief 2022 LiveLaw (JKL) 209

Mehboob Ul Hussain Vs Jhasra Parvaiz 2022 LiveLaw (JKL) 210

Abdul Rashid Dar & Anr Vs Reyaz Ahmad Kucha y2022 LiveLaw (JKL) 211

Azra & ors Vs Mohammad Afzal Baghat 2022 LiveLaw (JKL) 212

Iqbal Jaffar Dar Vs UT of J&K 2022 LiveLaw (JKL) 213

Sheikh Feroz Ahmad Vs UT of J&K 2022 LiveLaw (JKL) 214

Hotel Corporation of India Ltd Vs UT of J&K & Ors 2022 LiveLaw (JKL) 215

UT of J&K & Ors V/s All J&K Workers Union SRTC and another J&K Road Transport Employees Association & Anr 2022 LiveLaw (JKL) 216

Phool Chand Vs Narcotics Control Bureau 2022 LiveLaw (JKL) 217

Sanjay Raina Vs State of J&K & Ors 2022 LiveLaw (JKL) 218

Shah Fahad Peerzada and another vs UT of JK and others 2022 LiveLaw (JKL) 219

Shashi Paul Singh Vs Gurmeet Paul & Anr 2022 LiveLaw (JKL) 220

Hafiza Begum & Ors Vs Shams Din Bhat & Ors 2022 LiveLaw (JKL) 221

Showkat Ahmad Najar & Ors Vs UT of J&K & Ors 2022 LiveLaw (JKL) 222

Dr SI Vs UT of J&K & Ors 2022 LiveLaw (JKL) 223

Rajesh Gupta Vs Union of India 2022 LiveLaw (JKL) 224

Dr Kuldeep Chander Sharma & Anr Vs Union of India 2022 LiveLaw (JKL) 225

Jagdish Giri Vs Talib Hussain 2022 LiveLaw (JKL) 226

Mst Mala Begum Vs State of J&K 2022 LiveLaw (JKL) 227

Judgements/Orders :

• Right To Choose Forum For Redressal Of Grievance Does Not Permit Choice Of Two Forums For Same Reliefs: J&K&L High Court Imposes 50K Cost

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.

• Govt Analyst's Report U/S 25 Drugs & Cosmetics Act Not "Conclusive" If It Is Not Supplied To Person From Whom Sample Was Collected: J&K&L High Court

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.

• If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt To Be Decided At Trial: J&K&L HC

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.

• Mutation Entries Only Fiscal In Nature, Do Not Confer Any Title In Respect Of Property To Which They Relate: J&K&L High Court

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.

• J&K&L High Court Deprecates Passing Of Status Quo Orders In Property Disputes Without Tentatively Determining Party In Possession

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.

• High Court Refuses Intervention In PIL Seeking Recognition Of Hindi As Official Language Of J&K And Ladakh

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.

• 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."

• [Preventive Detention] Satisfaction Of Detaining Authority Must Be Based On Collective Scrutiny Of Police Dossier & Connected Docs: J&K&L High Court

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.

• Certificate Qua Payment Of Interest U/S 30(1)(aa) Workmen's Compensation Act Not Required If Employer Files Appeal Against Composite Award: J&K&L High Court

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.

• Power Of Sessions Judge U/S 409 CrPC To Recall Case Cannot Be Exercised Once Trial Has Commenced Before ASJ: J&K&L High Court

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.

• If Any Part Of Amount Claimed Is Admitted, Leave To Defend In Summary Suit Can't Be Granted Unless Admitted Amount Is Deposited: J&K&L High Court

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

• Witness Appearing For Complainant And Cross-Examined By Accused Cannot Be Called To Appear As Defence Witness: J&K&L High 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."

• Detaining Authority Bound To Record Satisfaction As To Why Detenue Could Not Be Deterred Under Ordinary Criminal Law: J&K&L High Court

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.

• S.482 CrPC| Mere Incorporation Of S.307 IPC In FIR/Chargesheet Not Ground To Reject Compromise, Nature Of Injury Relevant Factor: J&K&L High Court

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.

• Disputes Between Two Limbs Of Govt Should Not Be Fought In Court At The Expense Of Public Exchequer: J&K&L High Court

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.

• 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.

• Mere Operation Of S.37 NDPS Act Does Not Disentitle Accused To Bail, Relief Should Be Granted If Reasonable Grounds Exist: JKL High Court Reiterates

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.

• Birth Record As Per School Certificate Enjoys Priority Over Village Records While Determining Claims For Juvenility: J&K&L High Court

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.

• 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."

• Married Man With Capacity To Earn Obligated To Maintain Wife & Children, Cannot Plead Penury: J&K&L High Court Reiterates

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".

• Defectively Pleaded Cause Of Action Not Ground For Rejection Of Plaint Under Order VII Rule 11: J&K&L High Court

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.

• Govt Should Not Allow Workers To Remain As Temporary Employees For An Unreasonably Long Time: J&K&L High Court

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."

• J&K&L High Court Refuses To Quash ACB Enquiry Against JKAS Officer Claiming Complaint Linked With Her Sexual Harassment Case

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.

• Mere Registration Of FIR Or Pendency Of Investigation Not A Ground To Refuse Issue/Renewal Of Passport : J&K&L High Court

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.

• 'Medical Geneticist' Not Required To Undertake Competency Based Test Under Pre-natal Diagnostic Techniques Training Rules: JKL High Court

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.

• Unlike Criminal Proceedings, Action For Malicious Prosecution Generally Doesn't Lie Against Civil Proceedings: JKL High Court

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.

• Authorities Manning 'Dangerous Commodity' Must Take Extra Measures: JKL High Court Awards 24 Lakh Compensation To Woman Disabled Due To Electrocution

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.