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PETITIONER: BACHAN LAL KALGOTRA

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR AND OTHERS

DATE OF JUDGMENT20/02/1987

BENCH: REDDY, O. CHINNAPPA (J) BENCH: 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  of- Refugees 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  Permissi- bility of.

HEADNOTE:     The  refugees from West Pakistan who had  migrated  into the  State of Jammu and Kashmir in 1947 and had  been  domi- ciled in that State for nearly forty years are not permanent residents as defined in s.6 of the Jammu and Kashmir Consti- tution,  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  serv- ice  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  Constitu- tion,  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  parti- tion 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  Repre- sentation of the People, Act 1957 disqualifying a person for registration in an 370 electoral  roll  if he is not a permanent  resident  of  the

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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 (Classifica- tion, 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 recruit- ment  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 &  Kash- mir)  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  funda- mental 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 instruc- tions  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]

JUDGMENT: 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 proper- ty  in the State, the right to employment under  the  State, the right to start an industry, the right to purchase trans- port 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

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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 petition- er, 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 proper-               ty in the State, he has been ordinarily  resi-               dent 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  Legis-               lature  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

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             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  be-               longing  to  Class I who  settled  within  the               State  before the close of Samvat  year  1968,               and  have  since permanently resided  and  ac-               quired 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  regis-               tered  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  satis-               fied, 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,  sub-               ject,  however, to the Order dated 31st  Janu-               ary, 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  interpreta-               tion  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  pro-

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vides  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  resi- dent  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  Con- trol  and  Appeal  Rules provides that no  person  shall  be eligible  for appointment to any service by direct  recruit- ment  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  incon- sistent  with the rights guaranteed by Part III of the  Con- stitution 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  re-               spects:-               (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  incon-               sistent  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  peti- tioner, 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.

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   In the circumstances, in view of the peculiar  Constitu- tional  position obtaining in the State of Jammu &  Kashmir. We do not see what possible relief we can give to the  peti- tioner  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  opportuni- ties  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  consti- tute 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. 377