Bachan
Lal Kalgotra Vs. State of Jammu & Kashmir & Ors [1987] INSC 57 (20 February 1987)
Reddy,
O. Chinnappa (J) Reddy, O. Chinnappa (J) Natrajan, S. (J)
CITATION:
1987 AIR 1169 1987 SCR (2) 369 1987 SCC (2) 223 JT 1987 (1) 520 1987 SCALE
(1)385
ACT:
Constitution
of Jammu & Kashmir: S. 6 Constitution of India: Article 35A.
Jammu
& Kashmir Resettlement Act, 1982--Validity ofRefugees from West
Pakistan--Citizens of India--Domiciled in J & K State for forty
years--Denied permanent resident status, and basic rights of citizenship--Right
to acquire immovable property in the State, right to employment under the
State, right to higher technical education and right to be elected to the State
Assembly and local bodies Permissibility of.
HEAD NOTE:
The
refugees from West Pakistan who had migrated into the State of Jammu and
Kashmir in 1947 and had been domiciled in that State for nearly forty years are
not permanent residents as defined in s.6 of the Jammu and Kashmir
Constitution, with the result that they were disentitled to be included in the
electoral rolls of the State Assembly, to be elected to village Panchayats, to
be appointed to any service under the State Government by direct recruitment,
to purchase land in the State and to be admitted to higher technical
educational institutions under the relevant Acts and Rules. Section 6(2) of the
Jammu and Kashmir Constitution, however, provides
that permanent State subjects who had migrated to West Pakistan in 1947 shah be permanent residents
of the State on their return to the State under a permit for resettlement,
thereby entitling them to all the above rights.
The
petitioner, who claimed to speak on behalf of the refugees from West Pakistan
settled in the State, claimed that be and other persons situated like him
should at least be given the same rights as are given to those who had
voluntarily migrated to West Pakistan at the time of partition in 1947, on
their return to the State for resettlement.
Dismissing
the writ petition, the Court,
HELD:
Section 12(1)(b) of the Jammu and Kashmir Representation of the People, Act
1957 disqualifying a person for registration in an 370 electoral roll if he is
not a permanent resident of the State as defined in s.6 of the Constitution,
s.8(a) of the Village Panchayat Act, 1958 disqualifying such a person for being
chosen as or for being member of a Panchayat, s.4 of the Land Alienation Act,
1995 B.K. prohibiting transfer of land in favour of any person who is not a
State subject, and r.17(a) of the Jammu and Kashmir Civil Services
(Classification, Control and Appeal) Rules, 1956 rendering ineligible a person
who is not a hereditary State subject for appointment to any service under the
State Government by direct recruitment are not open to challenge as
inconsistent with the rights guaranteed by Part III of the Constitution of
India because of the "Constitution (Application to Jammu & Kashmir)
Order, 1954" issued by the President of India under Art. 370(1)(d) of the
Constitution, by which Art. 35A was added to the Constitution in relation to
the State of Jammu and
Kashmir. [374B-E] The
petitioner and those like him have a justifiable grievance. They have very
anomalous rights within the State.
Though
citizens of India and entitled to the various fundamental rights guaranteed by
the Constitution they are not in a position to enjoy many of those rights
within that State in which they are domiciled for nearly 40 years. In view of
the peculiar constitutional position obtaining in the State, it is upto the
legislature of the State to take action to suitably amend legislations, and for
the State Government to amend Service Rules and issue appropriate executive
instructions to make these persons eligible to exercise greater rights of
citizenship. They constitute nearly seven to eight per cent of the population
of the State. Surely, they are entitled to expect to be protected by the State.
[376A-C] The Union of India, in the peculiar context of the State also owes an
obligation to make some provision for the advancement of cultural, economic and
educational rights of these persons. [376B]
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 7698 of 1982.
(Under
Article 32 of the Constitution of India).
M.S. Ganesh,
(Amicus Curiae) for the Petitioner.
K. Parasaran,
Attorney General, Altar Ahmed, Adv. Genl., S.K. Bhattacharya, Ms. A. Subhashini
and H.C. Paonam for the Respondents.
371
The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The petitioner
is the Chairman of the Action Committee of West Pakistani Refugees. He migrated
from West Pakistan to the State of Jammu & Kashmir
in India in 1947 in the wake of the
partition of the country. He claims to speak on behalf of the refugees from West Pakistan who migrated and settled in the
State of Jammu & Kashmir. He contends that notwithstanding the fact that it
is almost four decades since they migrated and settled down in the State of
Jammu & Kashmir, they are denied many basic rights which other Indian
citizens have in other parts of the country, such as, the right to acquire any
immovable property in the State, the right to employment under the State, the
right to start an industry, the right to purchase transport vehicles, the right
to higher technical education, the right to be elected to the State Assembly or
a local body, etc. He complains that while refugees from West Pakistan who
migrated into the State of Jammu & Kashmir in 1947 and have settled down in
the State are denied these rights, recently the Jammu & Kashmir Legislature
has enacted the Resettlement Act, 1982 by which all these rights are given to
erstwhile residents of Jammu & Kashmir who had voluntarily migrated to West
Pakistan at the time of the partition of the country in 1947 and their
children, who may now choose to return to Jammu & Kashmir. The present writ
petition was initially filed challenging the vires of the Resettlement Act,
1982.
The vires
of the Act is already awaiting the decision of this court in special reference
No. 1 of 1982. The petitioner, therefore, gave up the challenge to the vires of
the Act in this petition leaving the question to be decided in special
reference no. 1 of 1982. For the purposes of this petition, he now proceeds on
the basis that the Act is valid but claims that he and other persons situated
like him should at least be given the same rights as are given to those who
voluntarily migrated to est Pakistan at
the time of the partition in 1947.
It is
true that the persons in the position of the petitioner who migrated from West
Pakistan to the State of Jammu & Kashmir in the wake of the 1947 partition
and have settled down in the State in Jammu & Kashmir and who are citizens
of India and who also have the right to participate in elections to Parliament,
have very anomalous rights within the State. For example, they are not entitled
to be included in the electoral roll of the State Assembly, they are not
entitled to be elected to a village panchayat, they are not entitled to
purchase any land and they are also not entitled to be appointed to any service
under the State Government. All these denials and deprivations are 372 the
consequence of the definition of a 'permanent resident' under sec.6 of the
Jammu & Kashmir Constitution. Sec. 6 is as follows:
"Permanent
residents--(1) Every person who is, or is deemed to be, a citizen of India under
the provisions of the Constitution of India shall be a permanent resident of
the State, if on the fourteenth day of May, 1954-(a) he was a State Subject of
Class I or of Class II; or (b) having lawfully acquired immovable property in
the State, he has been ordinarily resident in the State for not less than ten
years prior to that date.
(2)
Any person who, before the fourteenth day of May, 1954, was a State Subject of
Class I or of Class II and who having migrated after the first day of March,
1947, to the territory now included in Pakistan, returns to the State under a
permit for resettlement in the State or for permanent return issued by or under
the authority of any law made by the State Legislature shall on such return be
a permanent resident of the State.
(3) In
this section, the expression "State Subject of Class I or of Class
II" shall have the same meaning as in (State Notification No. 1-L/84 dated
the twentieth April, 1927, read with State Notification No. 13/L dated the twentyseventh
June, 1932.)" The 1927 Notification defining State Subject is as follows:
"The
term State Subject means and includes-Class I.--All persons born and residing
within the State before the commencement of the reign of His Highness the late
Maharaja Ghulab Singh Sahib Bahadur, and also persons who settled therein
before the commencement of Samvat year 1942, and have since been permanently
residing therein.
Class
II.--All persons other than those belonging to Class I who settled within the
State before the close of Samvat year 1968, and have since permanently resided
and acquired immovable property therein.
373
Class III--All persons, other than those belonging to Classes I and II
permanently residing within the State, who have acquired under a rayatnama any
immovable property therein or who may hereafter acquire such property under an ijazatnama
and may execute a rayatnama after ten years continuous residence therein.
Class
IV.--Companies which have been registered as such within the State and which,
being companies in which the Government are financially interested or as to the
economic benefit to the State or to the financial stability of which the
Government are satisfied, have by a special order of His Highness been declared
to be State Subjects.
Note 1
--In matters of grants of the State scholarships, State lands for agricultural
and house building purposes and recruitment to State service, State Subjects of
Class I should receive preference over other classes and those of Class II,
over Class III, subject, however, to the Order dated 31st January, 1927 of His
Highness the Maharaja Bahadur regarding employment of hereditary State subjects
in Government service.
Note
II.--The descendants of the persons who have secured the status of any class of
the State Subjects will be entitled to become the State Subjects of the same
class. For example, if A is declared a State Subject of Class II his sons and
grandsons will ipso facto acquire the status of the same class (II) and not of
Class I.
Note
III.--The wife or a widow of a State Subject of any class shall acquire the
status of her husband as State Subject of the same class as her husband, so
long as she resides in the State and does not leave the State for permanent
residence outside the State.
Note
IV.--For the purposes of the interpretation of the term 'State Subject' either
with reference to any law for the time being in force or otherwise, the
definition given in this Notification as amended up to date shall be read as if
such amended definition existed in this Notification as originally
issued." 374 There is no dispute that the petitioner and others like him
are not 'permanent residents' of Jammu & Kashmir within the meaning of
sec.6 of the Jammu & Kashmir Constitution. It is because they are not permanent
residents as defined by sec.6 of the Jammu & Kashmir Constitution, they do
not have the rights and privileges mentioned earlier. Sec. 12(b) of the Jammu
& Kashmir Representation of the People Act provides that a person shall be
disqualified for registration in an electoral roll if he is not a permanent
resident of the State as defined in Part III of the Constitution, sec.8(a) of
the Villages Panchayat Act provides that a person shall be disqualified for
being chosen as or for being a member of a Panchayat if he is not permanent
resident of the State, sec.4 of the Land Alienation Act, 1995 BK. provides that
transfer of land in favour of any person who is not a State subject is
prohibited and rule 17(a) of the Jammu & Kashmir Civil Services,
Classification of Control and Appeal Rules provides that no person shall be
eligible for appointment to any service by direct recruitment unless he is a
hereditary State subject to be known hereafter as a permanent resident. It is
to be noticed here that these provisions are not open to challenge as
inconsistent with the rights guaranteed by Part III of the Constitution of
India because of "the Constitution (Application to Jammu & Kashmir)
Order, 1954" issued by the President of India under Art. 370(1)(d) of the
Constitution by which Art. 35(A) was added to the Constitution in relation to
the State of Jammu & Kashmir. This Article states:
"35-A.
Notwithstanding anything contained in this Constitution, no existing law in
force in the State of Jammu & Kashmir, and no law hereafter enacted by the
Legislature of the State,
(a) defining
the classes. of persons who are or shall be, permanent residents of the State
of Jammu & Kashmir; or
(b) conferring
on such permanent residences any special rights and privileges or imposing upon
other persons any restrictions as respects:(i) employment under the State
Government;
(ii) acquisition
of immovable property in the State;
(iii) settlement
in the State; or 375
(iv) right
to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or
abridges any rights conferred on the other citizens of India by any provisions of this
part." The net result is that persons in the position of the petitioner,
though citizens of India and entitled to the various Fundamental Rights
guaranteed by the Constitution, are not in a position to enjoy many of those
rights within the State of Jammu & Kashmir though they are domiciled in
that State for nearly 40 years.
On the
other hand, those who had migrated to West Pakistan in 1947 and who may choose to return to the State of Jammu
& Kashmir now, appear to stand in a better position. But that is apparently
because of the special position secured to them in the Jammu & Kashmir
Constitution itself. Sec.6(2) of the Jammu & Kashmir Constitution which has
already been extracted by us, expressly provides that such persons if they were
previously State Subjects of Class I and Class II shall be permanent residents
of the State on their return to the State of Jammu & Kashmir from West
Pakistan under a permit for resettlement in the State or for permanent return
issued by or under the authority of any law made by the State Legislature. It
is pursuant to this provision that the Resettlement Act has been enacted.
In the
circumstances, in view of the peculiar Constitutional position obtaining in the
State of Jammu & Kashmir.
We do
not see what possible relief we can give to the petitioner and those situate
like him. All that we can say is that the position of the petitioner and those
like him is anomalous and it is up to the Legislature of the State of Jammu
Kashmir to take action to amend legislature, such as, the Jammu & Kashmir
Representation of the People Act, the Land Alienation Act, the Village Panchayat
Act, etc. so as to make persons like the petitioner who have migrated from West
Pakistan in 1947 and who have settled down in the State of Jammu & Kashmir
since then, eligible to be included in the electoral roll, to acquire land, to
be elected to the Panchayat, etc. etc. This can be done by suitably amending
the legislations without having to amend the Jammu & Kashmir Constitution.
In
regard to providing employment opportunities under the State Government. it can
be done by the Government by amending the Jammu & Kashmir Civil Services,
Classification of Control and Appeal Rules. In regard to admission to higher
technical educational 376 institutions also, the Government may make these
persons eligible by issuing appropriate executive directions without even
having to introduce any legislation. The petitioners have a justifiable
grievance. We are told that they constitute nearly seven to eight per cent of
the population of the State of Jammu & Kashmir. Surely they are entitled to
expect to be protected by the State of Jammu & Kashmir. In the peculiar
context of the State of Jammu & Kashmir, the Union of India also owes an
obligation to make some provision for the advancement of the cultural, economic
and educational rights of these persons. We do hope that the claims of persons
like the petitioner and others to exercise greater rights of citizenship will
receive due consideration from the Union of India and the State of Jammu &
Kashmir. We are, however, unable to give any relief to the petitioners.
P.S. S
Petition dismissed.
Back