SRINAGAR: The Jammu court expressed reservations about whether the Central government could have made a provision of the Code of Civil Procedure (CPC) concerning the time limit to file written statements in civil suits applicable to the Union Territory of Jammu and Kashmir following the abrogation of Article 370 of the Constitution.
Additional District Judge Jammu Virinder Singh Bhou opined that such an amendment, which was made applicable to Jammu and Kashmir by way of an “Adaptation Order”, is invalid as it violates Section 96 of the Jammu and Kashmir Reorganization Act.
The judge, therefore, referred the matter to the High Court of Jammu and Kashmir and Ladakh for its opinion.
“Substantive amendments could have been brought only by a competent legislature and not by the executive in exercise of power under Section 96 of the J&K Reorganisation Act.
Therefore, such developments brought by the Central government by way of Adaptation Order, in my opinion, are invalid being ultra vires of Section 96 of the J&K Reorganisation Act,” Judge Bhou opined as reported by the Bar and Bench.
The question of whether this CPC amendment was valid was raised before the court in a suit titled Prediman Krishan Tickoo v. Roshan Lal and Ors. The defendants in the suit applied to refer the matter to the High Court under Section 113 read with Order XLVI of the CPC.
The judge observed that Section 96 of the J&K Reorganisation Act enables the Central government to make adaptations and modifications to laws that are necessary or expedient “for the purpose of facilitating the application in relation to the successor Union Territories.”
He added that the scope of Section 96 is limited to amendments that are only of form and not of substance. Therefore, no substantive amendments could have been brought to the CPC made under Section 96 of the J&K Reorganisation Act, the district judge opined.
The CPC provision in focus makes it mandatory for a defendant in a civil suit to file a written statement within 120 days (30 days, extendable by 90 days) from the date of summons.
The said provision was made applicable to Jammu and Kashmir by way of an Adaption Order under the Jammu and Kashmir Reorganisation Act, 2019. The CPC itself (including the above provision) was made applicable to Jammu and Kashmir by the Central government by a Standing Order dated March 18, 2020.
These developments took place after the Central government decided to abrogate Article 370 of the Constitution, which had earlier conferred a special status on the erstwhile State of Jammu and Kashmir.
The Jammu district court opined that the provision concerning the filing of written statements is discriminatory in its application to Jammu and Kashmir.
“The amendments brought in the CPC by the Central government are discriminatory as they have made period of 120 days for filing written statement mandatory in all civil suits, whether commercial or non-commercial, within the UT of J&K, whereas in rest of India, the stipulated period for filing written statement is mandatory in commercial suits only and is directory in non-commercial suits,” the Court’s January 11 order stated.
The Court added that it could not find any rationale or objective for bringing in such a substantive amendment, either in the Adaptation Order or otherwise, which would justify applying different provisions to Jammu and Kashmir, when compared to how it is applied to the rest of India.
The said amendments fall foul of Article 14 of the Constitution of India as they are arbitrary and discriminatory, the Court opined.
Having opined that the High Court ought to settle the issue, the district judge referred the following two issues for the High Court’s opinion:
Whether the CPC amendment introduced by the Standing Order dated March 18, 2020, by the Central government is invalid for being ultra vires of Section 96 of the J&K Reorganisation Act, 2019?
Whether the said amendment is invalid for being violative of Article 14 of the Constitution of India?
The determination of these issues are necessary to decide on whether to condone a delay by the defendants in Prediman Krishan Tickoo v Roshan Lal and Ors. in filing their written statement, the district judge added in his reference letter to the High Court.
The application seeking the reference of the matter to the High Court was filed through advocates Ruhal Sharma and Bhavesh Bhushan. (Bar and Bench).
