SC defers hearing on 1982 J&K Re-settlement Act, CJI to fix date
New Delhi, Jan 09: The Supreme Court on Wednesday deferred hearing on a plea challenging the validity of the sensitive Jammu and Kashmir Resettlement Act of 1982, and said the Chief Justice will fix the further date for hearing in the matter.
A bench of Chief Justice Ranjan Gogoi and Justices L N Rao and S K Kaul perused the letter circulated by Jammu and Kashmir government seeking adjournment and asked the reason for it.
The bench deferred the hearing and said the date of further hearing will be fixed by the Chief Justice of India in chambers.
Jammu and Kashmir’s standing counsel Shoeb Alam and advocate general D C Raina said adjournment of proceeding was sought as the state was currently under the President's rule.
Alam said since the enactment challenged in the plea filed by Jammu and Kashmir National Panthers Party (JKNPP) was a legislation of a State Assembly, therefore matter should be heard when the elected government comes in place.
To this, the bench said that it cannot defer the matter for hearing indefinitely and there was always a government in place.
The State government counsel further said that the matter was sensitive and a adjournment was sought only till the time an elected government comes in power and it was not his submission that there was no government in place.
Alam suggested that matter could be heard in April.
Justice Kaul asked him whether the competent authority under the Act was ever notified and whether any applications for re-settlement had been received.
He replied in negative to both the queries.
Justice Kaul then asked senior advocate Bhim Singh, appearing for JKNPP, as to what was the hurry in hearing the matter, when the Act was never operated and moreover there was a stay on its operation from the apex court.
Singh replied that the matter has been pending since 2001 and it needs to be finally adjudicated at the earliest.
The bench then pointed out that in their opinion, the only issue that remains was whether the descendents of permanent residents, who migrated to Pakistan, could be permitted to return, especially in view of the fact that no application has been filed by the permanent residents of the state that too after more than 70 years of migration.
Permanent residents are the persons who are being given special rights and privileges under the Jammu and Kashmir Constitution.
It asked Alam and Raina to seek instructions on this aspect.
The State government had on January 07, moved the apex court seeking adjournment of the hearing on a plea saying that there is no elected government in place.
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.
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 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.
JKNPP had earlier told the court that the top court 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 Harsh Dev 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.
Harsh Dev Singh had 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'.
The top court had stayed the operation of the Act in 2001.