Civil No 7698 of 1982
Under Article 32 of the Constitution of India
MS Ganesh Amicus Curiae for the Petitioner
K Parasaran Attorney General Altar Ahmed Adv
 SK Bhattacharya Ms A Subhashini and HC 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 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 sec6 of the Jammu  Kashmir Constitution
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 L84 dated the twentieth April 1927 read with State Notification No 13L 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 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 sec6 of the Jammu  Kashmir Constitution
It is because they are not permanent residents as defined by sec6 of the Jammu  Kashmir Constitution they do not have the rights and privileges mentioned earlier
12b of the Jammu  Kashmir Representation of the People Act pro 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 sec8a 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 sec4 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 17a 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 article 3701d of the Constitution by which article 35A 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
Sec62 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 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
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
PS S Petition dismissed


Summary:
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 s6 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 62 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 121b 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 State as defined in s6 of the Constitution s8a of the Village Panchayat Act 1958 disqualifying such a person for being chosen as or for being member of a Panchayat s4 of the Land Alienation Act 1995 BK prohibiting transfer of land in favour of any person who is not a State subject and r17a 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 article 3701d of the Constitution by which article 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