JAMMU & KASHMIR HIGH COURT GIVES FREEDOM FROM “THE TYRANNY OF STATUTES”

 

Periander, The Second Tyrant of Corinth (Greece)
The Mansell Collection/Art Resource New York
Copyright credits britanica.com

The Jammu & Kashmir Re-organization Act 2019 received the assent of the president on 9-8-2019. It was duly notified in the gazette vide S.O. No. 2898(E) making it in force from 31-8-2019. The Act brought into effect two separate Union Territories namely Union Territory of Jammu & Kashmir as well as Union Territory Ladakh thereby ending the years of state autonomy and extending the writ of the Central Government over its regions. The ball was set in motion however by the original statue which provided for the immediate repeal of all legislations that had been enacted by the local Legislative Assembly comprising the elected members of the State of Jammu and Kashmir. Further on the morning of Aug 9th the President of India at 5 am also issued executive orders by which Art 370 (a temporary provision in the constitution) was made in-operational in the State of Jammu & Kashmir.

The basic skeletal framework of the State administration was by this act conveniently dismantled.The executive Act of the President left an unfortunate chasm of ambiguity with respect to the regions Executive and Judicial hierarchy under which the erstwhile State had been administered. The effect of both the parliamentary and presidential actions was the emergence of  a peculiar situation never ever experienced in India from the date of its constitution. 

The gravity of the condition can be best understood from a situation which confronted the Supreme Court where The Jammu Bar Association (Official Bar Association of erstwhile Jammu & Kashmir State) approached the court for interim relief, concerning the right of its member lawyers to livelihood,  practicing in the erstwhile state of J&K.  The Hon’ble Supreme court could not proceed to assist them initially, as the The Jammu Bar Association was registered under the Local Laws of the State of Jammu & Kashmir, which had now been repealed and but had not been replaced by any other piece of parliamentary enacted legislation. To make the situations worse the court was of the opinion that as  the erstwhile state of J&K, enjoyed a form of autonomy under the constitution and  the J&K Bar Association, having being registered under the local statute enacted by such an autonomous state, the association was therefore not subject to the jurisdiction of the Bar Council of India. The Bar Council of India which is the Apex body in India regulating all activities pertaining to Right to practice for lawyers in India etc. As a result they could not seek assistance on the grounds of being an affiliate of the Bar Council of India either.

An Identical situation faced by the Jammu Bar Association had arisen in all administrative and executive bodies including Tribunals and host of Quasi-Judicial bodies that were operating in the erstwhile state of Jammu & Kashmir. Which as per the new legislation now stood to be abolished. This conundrum  not foreseen by the central government, led to the justice delivery system in the Union Territory come to a grinding halt.  The citizens were being deprived their fundamental right envisaging the right to access justice, simply because of the Bad drafting of such an important piece of legislation. The situation had prolonged beyond September 2019 and the Jammu Bar Association finally went on an indefinite strike beginning in November 2019. The Strike was called off only this year April 2020.

The judgement discussed in this article is one of the few recently adjudicated by the J&K High Court that wanted to put in perspective the Jammu & Kashmir Re-organization Act 2019 as it was originally conceived and to set the wheels of justice in motion — putting an end to the “Tyranny of Statues” that was plaguing the lives of ordinary citizens. for such a long time. 

FACTS OF THE CASE

The complainant had taken an insurance policy from National Insurance Company and Oriental Insurance Company for his home. One day he was approached by the local police at his shop and was escorted back to his home only to be told that some militants had taken refuge in it. A gun battle ensued and his home was burnt down to the ground. He approached the police for an FIR and for a report with the insurance companies. The surveyor of National Insurance Company did the survey however there was no response from Oriental Insurance company. Later he was intimated regarding the cancellation of the policy on the grounds of non-disclosure. The complainant had approached the J&K State Consumer Disputes Commission against this cancellation. The Commission ruled in favour of the complainant. However, as the awarded amount was much below the claimed value, the complainant filed an appeal before the J&K High Court seeking enhancement of the awarded amount. In the meantime, during the pendency of the proceeding, The Jammu & Kashmir Re-organization Act 2019 was passed and the J&K Consumer Protection Act was repealed. Apart from the factual issue that required adjudication the preliminary issue pertaining to maintainability of the petition before the J&K High Court was raised and answered by the court first. The issue arose since the power to hear appeals from orders of the J&K State Consumer Disputes Redressal Commission was derived by the court from the J&K Consumer Protection Act 1985 which had been repealed and under the The Consumer Protection Act 1986 applicable now the court of appeal was The National Consumer Disputes Redressal Commission located in Delhi.

PRELIMINARY ISSUE OF MAINTAINABILITY

The Appeal was being challenged on the preliminary grounds that the Government of India vide its Jammu & Kashmir Re-organization Act 2019 which received the assent of the president o 9-8-2019 and was duly notified into law vide S.O. No. 2898(E) which put the law in force to commence from 31-8-2019. The act created the establishment of two Union Territories of Ladakh and Jammu & Kashmir respectively. The Act vide Table -1 of the Fifth Schedule made central laws including  The Consumer Protection Act 1986 applicable to the said territories. Likewise, Table-3 of the same Schedule makes a mention of such laws, as were prevalent in the erstwhile State of Jammu and Kashmir, which were declared to have been repealed and included the Jammu and Kashmir Consumer Protection Act, 1987. It was therefore, contends that since these appeals have been, admittedly, filed under Section 17 of the erstwhile Jammu and Kashmir Consumer Protection Act, 1987, which stood repealed with the application of the Jammu and Kashmir Reorganization Act, 2019. The High Court of  J&K had no jurisdiction to hear these appeals as it derived its powers under the repealed act. Accordingly it was pleaded that the matters should be transferred to the National Consumer Disputes Redressal Commission under the The Consumer Protection Act 1986. A reference was also given to the recent order of the Central Government vide which cases pending before the Administrative Tribunal of the J&K were transferred to be heard before the sitting benches of the Central Administrative Tribunal set up by the Central Government vide The Administrative Tribunals Act 1985.

This argument was contested by the Oriental Insurance Companies that pleaded that vide  Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019 dated 30th of October, 2019, passed vide S.O.No.3912(E) Sec 13(d) of the Act was the saving provision or saving clause of the Act, that allowed all  and any acts of investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment that might have accrued under the earlier J&K Consumer Protection Act 1987 and allowed it be adjudicated thereon.

“(d) any investigation, legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty, forfeiture or punishment
as aforesaid

The actions done or pending before the J& K State Commission therefore stood saved and the appeal arising from them were to be administered under the now repealed J&K Consumer Protection Act 1987 which empowered the High Court of J & K to conduct the appellate proceedings.

The Counsel for the original complainant before the J&K State Commission in addition to the argument advanced by the Insurance Company also suggested that the past acts or order pending before the court were also saved under the Old repealed Act owing to the operation  of Sec 6 of The General Clauses Act 1897.

The court accepting the line of arguments taken by the Insurance Company as well as the consumer decided to admit the appeal and stated asunder:

“07. Having regard to the above factual backdrop vis-a-vis the change in the scheme of law/ forums that has taken place with the enactment of the Jammu and Kashmir Reorganization Act, 2019, coupled with the arguments advanced by the parties on this issue, it is not possible for us to accept the contention of Mr Khuroo that in absence of a ‘Saving Clause’, the pending proceedings as well as the jurisdiction of this Court cannot be deemed to have been saved, primarily on three counts. First, the Central Government has already passed the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019, Clause (d) to Section 13 whereof clearly saves the pending legal proceedings. A bare perusal of this Clause, as is reproduced in paragraph No. 04 of this judgment, makes it explicitly axiomatic that the competent authority has already saved those investigations or legal proceedings or remedies in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment acquired/ accrued/ incurred under any law so repealed or in respect of any offence committed against any law so repealed by declaring that it shall be deemed as if the Act (i.e., the Jammu and Kashmir Reorganization Act, 2019 herein this case) had not been passed. Second, the general principle is that an Act of the Legislature which brought about a change in the scheme of law/ forum would not affect pending actions/ proceedings, unless the intention to the contrary was clearly shown in the Act of the Legislature itself. Since, the amending Act does not so envisage, it has to be concluded that the pending appeals/ proceedings (before the enactment of the Jammu and Kashmir Reorganization Act, 2019) would not be affected in any manner. Third, Section 6(c) and (e) of the General Clauses Act, 1897, categorically envisage that the amendment of a Statute which is not retrospective in operation does not affect pending proceedings, except where the amending provision/ Act, expressly or by necessary intendment, provides otherwise. Apart from this, it is a cardinal principle of law that when a lis commences, all rights and obligations of the parties get crystalized on that date and the mandate of Section 6 of the General Clauses Act, 1897″

The court also clarified that the order transferring “service matters” from the J&K Administrative tribunal to the The Central Administrative Tribunal was done under Sec 28 & 29 of the The Administrative Tribunals Act 1985 which specifically provided for the transfer of any pending proceedings before any court or tribunal to itself. The Transfer sought being vide a provision of an enacted statue there was no requirement of interpreting it differently and thus it did not require any additional support of any other general provision such as Sec 6(c) of The General Clauses Act 1897.  

“09. The upshot of the above discussion leads us to the undisputable conclusion that all the pending proceedings/ appeals arising out of the orders or awards passed by the erstwhile Jammu and Kashmir State Consumer Disputes Redressal Commission are to continue to be heard and decided by this Court as if the unamended provision/ Act is still in force. Therefore, the question raised by Mr Khuroo regarding jurisdiction of this Court to hear and decide these pending appeals shall stand answered accordingly.”

CONCLUDED

On the facts of the case the court agreed with the argument of Oriental Insurance Company that there was non-disclosure of the fact that the subject matter house was insured with another company as well as the fact that the house in question was being used to harbor terrorists. Both these facts violated the terms of the Insurance contract and the principles of “uberrima fides” or “absolute good faith” that was expected from the assured and was the basis of any contract of insurance. The disclosure of this information was essential for the insurance company to determine its risk exposure and the corresponding premium that it would charge. These facts therefore gave the insurance company the right of repudiation of the “insurance contract” on grounds of non-disclosure. The court therefore proceeded to set aside the order of the State Commission altogether.

“30. For the reasons which we have adduced hereinabove, we are of the view that the Commission was in error in allowing the complaint filed by the complainant. We, accordingly, set aside the impugned order dated 31st of May, 2013, passed by the Commission, as a necessary corollary whereof, the appeals filed by the National Insurance Company Ltd., being MA No. 140/2013, and the Oriental Insurance Company Ltd., being MA No. 139/2013, shall stand allowed; whileas the one filed by the complainant, being MA No. 120/2013, shall stand dismissed. The consumer complaint filed by the complainant before the Commission shall also stand dismissed, accordingly.”

See the order