Gh. Nabi Bhat vs Pran Nath and Others

M. Yaqoob Mir, J.—Respondents are not present. They are set ex-parte.

Order dated 14.07.2006 passed by learned 2nd Additional Munsiff, Srinagar, is under challenge. By virtue of order impugned, learned court

below has stayed the proceedings of the suit in terms of Section 3 of Jammu and Kashmir Migrant (Stay of proceedings) Act, 1997 (hereinafter to

be referred as ""Act"").

Learned Counsel for the petitioners projected that court below without adhering to the object of relevant provisions has in a cryptic manner

passed the order which has got no basis. For appreciating the controversy in its right perspective, it shall be quite relevant to make mention of

factual matrix of the case precisely. Petitioners have filed suit for redemption of mortgaged land under survey No. 898-Min, 01 kanal and 16

marlas, 896-Min, 01 kanal and 6 Marias situated at Gupt Ganga,Srinagar. Respondents (defendants) 1, 2, 4 & 5 have filed written statement,

wherein, along with other facts it has been contended that they are migrants. They were residents of Srinagar but consequent to emergence of

militancy and on account of threat to their lives, they migrated to New Delhi, therefore, they are migrants. Proceedings of the suit in accordance

with the provisions contained in Act are liable to be stayed. Respondent (defendant No. 3) filed a separate written statement and has also

projected preliminary objection i.e. the respondents (defendants) 1, 2, 4 and 5 are migrants, therefore, the Act shall apply. Learned court below

vide its order dated 14.07.2006 has framed the issue as to whether the suit is hit by Section 3 of the Act or not. After hearing the parties, learned

court below has passed the order impugned.

Considering the submissions of learned Counsel for the petitioners, the moot question for determination is as to whether the ""Act"" is applicable

to the instant case or not. The word ""migrant"" has been defined in Section 2(c) of the Act and it shall be quite relevant to reproduce the same

below:

Migrant"" means any person who has migrated from the Kashmir Valley after 1st. November, 1989, and is registered as such with the Relief

Commissioner and includes a person who has not been so registered on the ground of his being in service of the Government in any moving office,

or having left the valley in pursuit of his occupation or vocation and is possessed of immovable property in the Valley but is unable to ordinarily

reside there due to the disturbed condition.

Three situations which will attract the applicability of Section 3 of the Act are:

(i) A person must have migrated after 01.11.1989 and must be registered as such with Relief Commissioner.

(ii) a person not so registered on the ground of his being in the service of Government in any moving office.

(iii) a person having left the Valley in pursuit of his occupation or vocation and is possessed of immovable property in the Valley.

Out of these three situations, situation No. 1 is projected by the respondents. Learned court below has not addressed the matter correctly

because no material has been placed on record which would show that the respondents (defendants) No. 1, 2, 4 & 5 have left the Valley after

01.11.1989, nor any certificate or any proof from office of Relief Commissioner has been obtained to show that they are registered Migrants with

the Relief Commissioner. In the written statement also respondents have not made it clear as to when they have left the Valley because the person

vis-a-vis situation No. 1 can be termed to be ""migrant"" only when he must have migrated after 01.11.1989. Learned court below has not exercised

jurisdiction properly. Least he should have done is that he should have enquired the matter and should have asked the respondents (defendants) to

place some record supporting the contention of their being migrants. Perusal of subordinate record reveals that it does not contain any such

document.

Simply by projecting the contention of being migrant is not enough unless the same is supported rather substantiated by some record as required

and referred above.

The submission of learned Counsel for the petitioner is well founded as the trial Court has failed to exercise jurisdiction vested in it. Learned

Counsel for the petitioner has relied upon judgment passed by this Court in C. Rev. 168/2006 dated 17.10.2007 titled Ghulam Mohd. Dar and

Ors. v. Nitar Nath Raina and Anr. Which is quite applicable to the facts and features of the present case.

Resultantly, for the reasons stated above, learned trial court has failed to exercise jurisdiction vested in it. The revision petition as such succeeds.

Order impugned is set aside. Trial court shall hold an enquiry as to whether respondents (defendants) 1, 2, 4 & 5 are migrants within the meaning

of Section 3 of the Act. It shall be for the respondents to place on record the certificate from Commissioner Revenue, Rehabilitation and Relief,

before whom migrant is required to be registered or to prove other wise, so as to attract the applicability of Section 3 of the Act.

Copy of the order along with subordinate record be sent back forthwith. Learned trial Court shall proceed in the matter after putting other side

on notice afresh. Learned Counsel shall ensure appearance on behalf of petitioner before the trial court on 26.12.2007. The revision petition is

disposed of accordingly.