Mohinder Verma
JAMMU, Mar 29: The Supreme Court of India has referred the petition challenging controversial J&K Resettlement Act, which allows return and reclaim of property by the people who had migrated to Pakistan and become foreign nationals after partition in 1947, to the three Judge Constitution Bench headed by the Chief Justice of India.
When the petition filed by Jammu and Kashmir National Panthers Party challenging J&K Resettlement Act came up for hearing before Supreme Court bench comprising Justice B S Chauhan, Justice J Chelameswar and Justice Kurian Joseph, J&K Government’s Advocate General, M I Qaidri brought to the notice of the Apex Court the order dated October 23, 2008 by which the matter had been referred to the Constitution Bench.
After hearing battery of lawyers for the petitioners and respondents, the Supreme Court passed the order for deletion of the matter from the list for placement before the Constitution Bench after seeking appropriate order from the Chief Justice of India.
However, before the order could be signed, the Registry brought to the notice of the bench that though the matter was referred to the Constitution Bench by a two Judge bench but when the matter was placed before the then Chief Justice of India for direction, the CJI passed the order on November 11, 2008 for listing it before a three Judge Bench.
Keeping this in view, the SC observed, “the matter is required to be heard by a three Judge Constitution Bench headed by Chief Justice of India”. Accordingly, the Apex Court directed the Registry to list the matter before the appropriate bench after six weeks.
According to the legal experts, the objective behind referring important matters to the three-Judge Constitution Bench is to ensure that a final decision is taken in case of difference of opinion among the Judges, which is otherwise not possible in two-Judge Constitution Bench. In case of difference of opinion in two-Judge bench the matter is required to be referred to third Judge, which situation can be easily avoided in three-Judge bench.
The Act passed by the State Legislative Assembly in 1982 was challenged in the year 2001 by the National Panthers Party and in 2002 the operation of the Act was stayed by the Apex Court.
According to the writ petition, the Act would become a tool for the entry of ‘terrorists’ into the State and its implementation would threaten unity and integrity of the country because it permits any person, who had migrated to Pakistan, to claim legal right to settle in Jammu and Kashmir. Another ground behind challenging the Act was that return of those migrated to Pakistan in 1947 would result into eviction of allottees of the evacuee properties.
The J&K Resettlement Act was enacted under Section 6 of Constitution of Jammu and Kashmir which states: 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 Legislature, shall on such return be a permanent resident of the State.
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