Judgment Case ID: 5289

Judgment:
(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. 	 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 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. 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 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. 12(b) 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	 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 article 370(1)(d) of the Constitution by which article 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. 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. P.S. 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 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 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 article 370(1)(d) 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]