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2019 DIGILAW 506 (JK)

Vinod Kumar Bhat v. Abdul Majeed Lone

2019-12-13

SANJEEV KUMAR

body2019
JUDGMENT : 1. In this petition, the petitioner has invoked the power of superintendence of this Court vested in terms of Section 104 of the Constitution of J&K for issuance of appropriate direction to stay the proceedings in the civil suit titled Abdul Majeed Lone & Another vs. Vinod Kumar Bhat pending before the learned Sub Judge, Baramulla, Kashmir (hereinafter for short ‘the trial court’). Stay of proceedings in the suit have been claimed by the petitioner, primarily, placing reliance on Section 3 of Jammu and Kashmir Migrants (Stay of Proceedings) Act, 1997 (hereinafter for short ‘the Act of 1997’). 2. Before this Court proceeds to deliberate on the issue raised in this petition, it would be necessary to notice few facts which are relevant for the disposal of this writ petition. 3. The petitioner claims, and which claim of the petitioner is not refuted by the respondents, that he is a migrant from Kashmir Valley having migrated to Jammu about 29 years back. Petitioner, as is asserted by him, is also registered as migrant with Relief Organization. The respondents have filed a suit seeking a decree of permanent injunction against the petitioner for restraining him from interfering or causing any interference in the land measuring 17 marlas, falling under survey no. 1387, situated at revenue village Delina (‘Suit property’ for short hereinafter). The aforesaid suit is pending adjudication before the trial court. In the suit filed before the trial court, the respondents have claimed to be the owners and in possession of the suit property with which the petitioner has no concern or interest. The petitioner has not filed any written statement before the court below nor has he filed any application seeking stay of the proceedings before the trial court in terms of Section 3 of the Act of 1997. The petitioner claims that since the dispute pertains to immovable property and the same has been instituted by the respondents against the petitioner, therefore, in terms of Section 3 of the Act of 1997, the suit cannot proceed and deserves to be stayed. In the back drop of aforesaid facts, the petitioner claims that this Court should entertain the matter and stay the proceedings of the suit pending before the trial court. 4. The petition has been opposed by the respondents by filing objections. In the back drop of aforesaid facts, the petitioner claims that this Court should entertain the matter and stay the proceedings of the suit pending before the trial court. 4. The petition has been opposed by the respondents by filing objections. It is claimed by the respondents that since the suit property is owned and possessed by them and the same is amply proved by the revenue record, as such, Section 3 of the Act of 1997 is not applicable. It is further submitted that the petitioner has misrepresented before this Court that he is not in a position to contest the suit pending before the trial court at Baramulla, when he has himself filed a complaint against the respondents before the Dy. Commissioner, Baramulla. The respondents, however, have not denied the status of the petitioner as migrant. As a matter of fact, in para 4 of the objections, the respondents have admitted and have stated that the petitioner has taken undue advantage of being migrant and has been harassing the petitioner through police and district administration. 5. I have heard learned counsel for the parties and perused the record. I am of the view that the petitioner is entitled to the stay of proceedings pending before the trial court in view of the unequivocal and categoric provisions of Section 3 of the Act of 1997. For facility Section 3 of the Jammu and Kashmir Migrants (Stay of Proceedings) Act, 1997 is reproduced as under:- 3. Stay of proceedings against Migrants “Notwithstanding anything to the contrary contained in any law for the time being in force, all proceedings pending or hereinafter filed against a migrant for recovery of loan raised in the Kashmir Division or relating to immovable property situated in the Kashmir Division shall remain stayed from the commencement of this Act till the Government notifies otherwise. Provided that nothing in this section shall apply to a dispute relating to recovery of money or immovable property inter-se-migrants.” 6. From plain reading of Section 3 of the Act of 1997, it clearly transpires that its provisions would be attracted in the following circumstances.: (i) If proceedings have been filed or pending against a migrant; (ii) If proceedings pertain to recovery of loan raised in Kashmir Division by the migrant; Or If proceedings relate to migrant property situated in Kashmir Division. 7. 7. If the aforesaid two conditions are satisfied, the proceedings in the suit are required to be stayed. 8. In the instant case, the petitioner is, indisputably, a migrant duly registered with the Relief Commissioner. This fact has been admitted by the respondents in the Reply and was also not disputed during the course of arguments. Second, the suit has been filed against the petitioner, a migrant and the suit pertains to immovable property situated in Kashmir Division. If that is the admitted position, it cannot be held, by any stretch of reasoning, that Section 3 of the Act of 1997 would have no applicability to the case in hand. The plea of the respondents that Section 3 of the Act of 1997 would be applicable only if the suit is filed in relation to the immovable property belonging to the migrant, cannot be accepted in the face of clear and unambiguous language of Section 3. It is well settled principle of interpretation of Statute that if the language of the statutory provision is clear and unambiguous, the Courts may not add to or subtract from the provision by resorting to the principle of reading down or reading into. When Section 3 of the Act of 1997 is understood in the context of Statement of Objects and Reasons preceding promulgation of the Act of 1997, it becomes abundantly clear that the Act was enacted to provide protection to the migrants who are sued for recovery of loan or in relation to any immovable property situated in Kashmir Division. It would not be out of place to reproduce what has been stated in the preamble of the Act of 1997 and it reads thus: Statement of Objects and Reasons Proceedings have been initiated and are pending adjudication before various judicial and quasi-judicial against the migrants for recovery of loan raised in the Kashmir Division or relating to immovable property situated in the said Division. The migrants cannot properly present their defence in person or through any representative in view of the fact that they are presently residing temporarily outside the Kashmir Division. There is urgent need to stay all such proceedings till such date as the Government may notify otherwise.” 9. The migrants cannot properly present their defence in person or through any representative in view of the fact that they are presently residing temporarily outside the Kashmir Division. There is urgent need to stay all such proceedings till such date as the Government may notify otherwise.” 9. Keeping in view the above avowed object of the legislation and plain interpretation of Section 3 of the Act of 1997, there is no escape from the conclusion that any suit filed against the migrant in relation to either the recovery of loan raised in Kashmir Division or immovable property situated in Kashmir Division is required to be stayed, till the Government notifies otherwise, whether or not the immovable property, which is subject matter of suit, belongs to a migrant. Reference to the definition of ‘migrant’ given in Section 2 (c) of the Act of 1997 by the petitioner to contend that migrant is only one who has not only left the valley after 01.11.1989 and is registered as such with the Relief Commissioner, but must also be one who was possessed of immovable property in the valley but was unable to ordinarily reside there due to disturbed condition, is totally misconceived. Otherwise also, there is no dispute with regard to the status of the petitioner being migrant nor is it the case of the respondents that the petitioner at the time of migration from the valley was not possessed of any immovable property in the valley. 10. The contention of the learned counsel for the respondents that the term ‘immovable property’ used in Section 3 of the Act of 1997 should be read as ‘immovable property of the migrant’ cannot be accepted as the same would amount to rewriting the provisions of Section 3 of the Act of 1997, which is not permissible in law. Learned counsel for the respondents has relied upon the judgment of this Court passed in case of Mohammad Akbar Thokar vs State of J&K and Ors, passed in LPAOW No.103/2016 decided on 23.05.2017 and M/s Hotel Ellora vs Shamboo Nath Sopori passed in Civil Revision No.204 of 2006 decided on 12.11.2008. Both the judgments relied upon by the respondents are clearly distinguishable on facts. Both the judgments relied upon by the respondents are clearly distinguishable on facts. In the case of Mohammad Akbar Thokar (supra) the Division Bench of this Court has interpreted the provisions of Jammu & Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales Act) 1997 in which the term the ‘immovable property’, wherever used, is in relation to ‘migrant’. Section 3 and 4 of the aforesaid Act clearly used the expression ‘immovable property of a migrant or immovable property belonging to migrant’ but such prescription is not available in Section 3 of the Act of 1997. So far as the judgment in the case of M/s Hotel Elora (supra) is concerned, the same is undoubtedly passed in a case arising under the Act of 1997 but in the aforesaid case the status of the defendant as migrant was seriously disputed. It is in those circumstances, the Single Bench of this Court opined that such disputed question of fact could only be proved before the trial court. As taken note of hereinabove, in the instant case, there is absolutely no dispute with regard to the status of the petitioner as migrant. 11. In view of what is discussed and held above, I am of the view that the petitioner has made out a case for showing indulgence in the matter in exercise of powers under Section 104 of the Constitution of India. I am not inclined to accept the contention of learned counsel for the respondents that the proceedings in the suit can only be stayed by the trial court and, therefore, this Court should relegate the petitioner to the remedy of filing an application before the trial court. This is so, because asking the petitioner to file application before the trial court and contest it there would be negating the very object for which the Act of 1997 has been legislated. 12. In the premises, this petition is allowed and proceedings pending before the trial court i.e., Sub Judge Court, Baramulla in the case titled Abdul Majeed Lone & Another vs. Vinod Kumar Bhat, shall remain stayed till the Government notifies otherwise. Disposed of.