New Delhi, Jan 7:
Jammu and Kashmir Monday sought adjournment of the Supreme Court hearing on a plea challenging the validity of the sensitive J&K Resettlement Act of 1982, saying that there is no elected government at present in the state which is under the President’s rule. It said that since the challenge is to the state legislature enactment, it would be appropriate if the hearing was done when the elected government is in place. The reason was given in a letter circulated among the parties in the case by the state administration. In its affidavit filed through advocate Shoeb Alam, it replied to the query of the court, asked during the last hearing, as to how many people who had migrated from the state have applied for returning from Pakistan under the provisions of the Act. The state government said in its reply that the Act was never notified by it and therefore no applications could be received under the Act. “Upon perusal of records it was found that no applications have ever been received under the Act of 1982 even by the custodian of Evacuee property, Jammu and Kashmir. Also no application was ever received by the office of the custodian general,” it said. The government also replied in negative to the question asked by the court whether any applications were made by the descendants of permanent residents who had migrated to Pakistan. On December 13 last year, the apex court, while hearing the plea challenging the validity of the sensitive Act, had sought to know as to how many people who migrated from the state have applied for returning from Pakistan. It had asked the state government’s counsel to take instruction on the issue. The apex court had wanted to know how many migrants and their descendants have applied and whether applications for return have been made by permanent residents — persons who are being given special rights and privileges under the Jammu and Kashmir Constitution.
The top court was apprised that the Act was meant for those people who had migrated to Pakistan during the partition in 1947 and were willing to return.
The Jammu and Kashmir Resettlement Act of 1982, which was stayed by the apex court in 2001, envisages grant of permit for resettlement of Pakistani nationals who had migrated to Pakistan from Jammu and Kashmir between 1947 and 1954 after India’s partition.
The petitioner, Jammu and Kashmir National Panther Party (JKNPP), is arguing the matter through its Chief and senior advocate Bhim Singh.
Singh has contended that the matter has been pending for long and needs to be decided.
The top court had on August 16, 2016 indicated that it may refer the matter to a constitution bench if it finds that some issues needed interpretation of the Constitution.
The court had said that it will hear the matter and if during the course of proceedings it is found that no constitutional issue is involved, then it will pass an order.
JKNPP had earlier told the court that a division bench in 2008 had issued direction to list the case before a constitution bench but the Chief Justice in the same year had over-ruled the decision and ordered the matter to be listed before a three judge bench.
It had said that people of Jammu and Kashmir who migrated to Pakistan from 1947 could be considered for their return but their descendants could not be.
The party had said that the law passed by the Assembly was draconian, unconstitutional and improper which threatened the security of the state.
JKNPP through Harsh Dev Singh, a then MLA, had challenged the Act passed by the J&K Assembly in 1982.
In 1982, the Act was first challenged by Singh before the apex court and then Governor B K Nehru had refused to sign the Bill and sent it back to the Assembly.
Later, Atal Bihari Vajpayee, the then President of newly constituted BJP, had also filed a petition before the apex court seeking intervention.
Singh said that even B K Nehru, an Indian diplomat and native of Kashmir, was convinced that the Act suffered from many defects and constitutional error.
The matter was considered by the Constitution Bench of the Supreme Court in 2001 on a presidential reference. The apex court returned the reference to President with a three-word pronouncement: ‘Returned, respectfully, unanswered’.
Singh in 2001 had filed a writ petition in the apex court seeking quashing of the Resettlement Act.
The top court while admitting the plea had ordered for stay of operation of the Act and in 2008, the matter was referred to the Constitution Bench on the plea that the subject relates to the interpretation of the Constitution of India.
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