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The Jammu and Kashmir Sharnarthi Action Committee and ors. Vs. State of Jammu and Kashmir and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtJammu and Kashmir High Court
Decided On
Case NumberLPA (W) No. 33 of 1995
Judge
Reported inAIR1997J& K15
ActsConstitution of Jammu and Kashmir, 1996 Smvt. - Sections 6, 47, 48 and 103; ;Constitution of India - Article 226; ;Constitution of Jammu and Kashmir, 1975; ;Jammu and Kashmir Representation of the People Act, 1957 - Sections 4, 15 and 16
AppellantThe Jammu and Kashmir Sharnarthi Action Committee and ors.
RespondentState of Jammu and Kashmir and ors.
Appellant Advocate S.S. Lehar, Adv.
Respondent Advocate U.K. Jalali, Adv. General and; S.K. Anand, Govt. Adv.
DispositionAppeal dismissed
Excerpt:
- .....it is stated that in the 'state of jammu and kashmir before the occupation of pakistan of certain area of kashmir in the year 1947, (111) constituencies had been approved for holding election to the legislative assembly of the jammu and kashmir state. however, the said area having been occupied by pakistan, which is now called pakistan occupied area of kashmir, thatnumber of constituencies came to be reduced to 75. the grievances of the writ petitioners (appellants) are that those citizens of kashmir who having migrated from pakistan occupied area of kashmir in 1947 have been settled down either in jammu or kashmir or the area of ladakh. thus they have settled down in these areas inevitably to eke out their livelihood, but their right to choose their representatives in accordance with.....
Judgment:

M. Ramakrishna, C.J.

1. The appellants 1 to 18, who were the petitioners in OWP No. 842/1994 having been aggrieved by the order of the learned single Judge made on 30-12-1994 by which the writ petition came to be dismissed, have presented this LPA challenging the correctness and legality of that order of the learned single Judge for the grounds taken in the appeal. They have sought for setting aside the order of the learned single Judge and to grant the relief as prayed for in the writ petition.

2. We have heard Sh. S. S. Lehar, learned counsel for the appellants and Mr. U. K. Jalali, learned Advocate General for the respondents.

3. A few facts that are necessary for the disposal of the appeal are as follows: The first appellant, The Jammu and Kashmir Sharnarthi Action Committee, is a body of persons represented through its President, S. Hardit Singh Panchhi and appellants 2 to 18 are its members. It is stated that in the 'State of Jammu and Kashmir before the occupation of Pakistan of certain area of Kashmir in the year 1947, (111) constituencies had been approved for holding election to the Legislative Assembly of the Jammu and Kashmir State. However, the said area having been occupied By Pakistan, which is now called Pakistan occupied area of Kashmir, thatnumber of constituencies came to be reduced to 75. The grievances of the writ petitioners (appellants) are that those citizens of Kashmir who having migrated from Pakistan occupied area of Kashmir in 1947 have been settled down either in Jammu or Kashmir or the area of Ladakh. Thus they have settled down in these areas inevitably to eke out their livelihood, but their right to choose their representatives in accordance with law still remains with them, but according to them the original number of constituencies having been reduced, it is to their disadvantage and therefore 25 constituencies will have to be added with a view to provide representation to these persons so that they would elect their own representatives of that area (Pak) to the Assembly of the Slate. Regard being had to the-provisions of Section 3(2) of the J. and K. Representation of the People Act, 1957, hereinafter called the 'Act of 1957' (Act No. IV of 1957) action has been taken by the Delimitation Commission now constituted by the Governor of the State of Jammu and Kashmir to limit the number of constituencies at 75. We may mention here that the writ petitioners (appellants) did not choose to produce any notification fixing the correct number of constituencies either in the Delimitation Commission or by the Government. So we proceed to take these figures furnished by the writ petitioners at their face value to be correct.

4. Indeed the petitioners have sought for quashing Section 3(2) of the Representation of the People Act for the reasons set out in the grounds. A prayer is sought for prohibiting the respondents from accepting the report of the Delimitation Commission or a writ of Mandamus that may be deemed fit by this Court in the circumstances of the case.

5. No statement of objections have been presented on behalf of the respondents. However, the learned single Judge having heard learned Counsel on both the sides dismissed the writ petition with the following observations:

'After hearing Mr. Lehari, learned Counsel appearing for the petitioners at great length, I do not find any merit in any of the aforesaidsubmissions of the petitioners. All the points urged by Shri Lehar are wholly fallacious and totally unsupported by the legal precedents on the point. The petition is dismissed.'

It is this order which is called in question in this LPA.

6. In the absence of any documentary evidence produced either of findings record-ed, recommendations made by the Delimitation Commission in exercise of the powers conferred on them under the 1975 Actor the Government order fixing the number of seats for holding the elections to the Legislative Assembly of the State of Jammu and Kashmir, we rely upon the figures given by the writ petitioners (appellants) and proceed to consider their submissions.

7. Shri S. S. Lehar, learned Counsel appearing for the appellants having taken us through the grounds taken in the writ petition as well as the LPA urged the following points:

(1) The action taken by the authorities in re-fixing the number of seats at 75 is contrary to the provisions of Sections 47 and 48 of the Constitution of Jammu and Kashmir;

(2) The fixation of this number of seats namely 75 is contrary to the provisions of Sections 6(1) and 6(2) of the Constitution.

Therefore, he submits that the learned single Judge ought to have seen these provisions with a view to appreciate the grounds taken in the writ petition and to grant the relief, which the learned single Judge had failed to do, Therefore, the argument advanced by Mr. Lehar is that the order of the learned single Judge is to be set aside and the relief to be granted as prayed for in the writ petition.

8. It is true that by a perusal of the order of the learned single Judge in the writ petition, it is seen that the learned Judge failed to consider any of the grounds taken in the writ petition, nor has he assigned any reason to dismiss the writ petition. However, the writ petition came to be dismissed in limine at the threshold.

9. Mr. Jalali, learned Advocate General, however maintains that a part of the area of Kashmir which has been illegally occupied by Pakistan in 1947 revolution and thereafter, the area which is now called as Pakistan Occupied Kashmir Area (POK) continues to be the no mans land, inasmuch as the State of Jammu and Kashmir has no power to legislate in respect of the population of the people occupying that area, nor action could be taken by the Chief Election Commissioner to hold elections in that part of the State of Jammu and Kashmir, much less is it open to the Government of India at this stage to include that part with a view to bring it within the purview of Section 3(2) of the Representation of People Act. He has also urged that regard being had to the provisions of Section 142 of the Constitution of Jammu and Kashmir, this Court has no jurisdiction to interfere with the delimitation of territories for the purpose of electing members to the Legislative Assembly or allotment of seats to such constituencies made or purported to have been made under Section 141. Therefore, he submited that action has been taken by the State of Jammu and Kashmir for appointing the Delimitation Commission with a view to refix the number of seats to be allocated for purpose of holding election to State of J. & K. Legislative Assembly recently and that accordingly the Commission having heard all the objectors and persons interested in the matter, has refixed the number of seats at 75 in compliance with the requirements of the relevant provisions of the Representation of People Act, 1957 Act. That act of re-fixation of the number of seats in regard to delimitation of constituencies in the State of Jammu and Kashmir is perfectly justified and this act on the part of the Commission cannot be called in question before this Court. He also submitted that the writ petitioners having failed to make out a case before the writ Court, the writ petition having beep dismissed, even on the grounds taken in the LPA no case is made out to enable the appellants to seek for the relief. He therefore submitted that the appeal will have to be dismissed.

10. Let us now consider the provisions of Section 47 of the Constitution of Jammu and Kashmir, which provides as follows :

'47. Composition of Legislative Assembly.-- (1) The Legislative Assembly shall consist of one hundred and eleven members chosen by direct election from territorial constituencies in the State;

Provided that the Governor may if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof (Number of Assembly seats had been fixed at all by Twentieth Amendment Act of the Constitution in 1987).'

Section 48 deals with the provisions relating to Pakistan occupied territory and provides as follows:

'48. Provision relating to Pakistan occupied territory.-- Notwithstanding anything contained in Section 47, until the area of the State under the occupation of Pakistan ceases to be so occupied and the people residing in the area elect their representatives.-

(a) (twenty four seats) in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly; and

(b) the said area shall be excluded indelimiting the territorial Constituencies under Section 47.Number of (Twenty four seats) as fixed in subjection (a) of Section 48 came to be provided by Amendment Act of 1975 (Twelfth Amendment) w.e.f. 17-9-1975. Thus a reading of provisions of Section 48(a) makes it abundantly clear that by virtue of Twelfth Amendment Act, 1975 this number has been fixed at twenty four seats which according to the Constitution shall remain unfilled or vacant until that area (POK) of the State continues to be under the occupation of Pakistan or ceases to be so occupied and the people residing in that area elect their representatives, which means that the makers of the Constitution had chosen by virtue of twelfth amendment in 1975 not to fill up these 24 seats in the Legislative Assembly as long as that area remains with the Pakistan Occupied Kashmir area, is with the sole intention not to give representation by making election to thatarea. This amendment had been made consciously by the makers of the Constitution which cannot be called in question in a writ petition under Article 226 inasmuch as it is for the authorities concerned to deal with that provision of law, as and when the situation changes or undergoes modification. It is not for this Court to sit in judgment over the fixation of the number of seats for purposes of holding election to the State Legislative Assembly in face of the fact that the makers of the Constitution have decided not to fill up twenty four seats coming within the area of POK. It is not for this Court to enquire or investigate as to why this action was taken by the amendment of the Constitution, Indeed the petitioners have not called in question this amendment in the Constitution which was made as far back as 1975. On the other hand the writ petitioners have sought only for increasing the number of seats by'25. In other words the writ petitioners have indirectly sought for seeking this Court to interfere with the amendment of 1975.

11. Apart from above legal contention which we have considered with the logical reasons as aforesaid, there are some situations and circumstances prevailing in this part of the country and the authorities wielding power under the Constitution are aware as to how to deal with the day to day situation arising out of militancy and insurgency taking place in the State of Jammu and Kashmir. Indeed it is not open for this Court in exercise of the powers conferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of J. & K. either to give suggestions or to interfere with the amendment in the Constitution which had been given effect to in 1975, resulting in refixing of the number of seats in the Legislative Assembly. We may mention here that as has been rightly brought to our notice by the learned Advocate General Section 6 of the Constitution of J. and K. is relevant to answer the question raised by Mr. Lehar. We extract this section:

'6. 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 thethe State, if on the fourteenth day of May, 1954:--

(a) he was a State Subject of Class I or the Class II; or

(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to the 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 or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.

(3) ...

Section 4-C of the Representation of thePeople Act, 1957 lays down as follows :

'4-C. Power to maintain delimitation orders up to date.-

(1) The Election Commission may, from time to time, by notification in the Gazette.-

(a)

(b) where the boundaries or name of any district or any territorial division mentioned in any of the said orders are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the order up to date.'

Section 15 of the Act provides conditions of registration for purposes of contesting election and for exercising franchise, which says:

'Subject to the foregoing provisions of this Part, every person who

(a) is not less than Eighteen years of age on the qualifying date; and

(b) is ordinarily resident in a constitutency shall be entitled to be registered in the electoral roll for that constituency. . .

Section 16 lays down, '16. Meaning of 'ordinarily resident'.-- (1)

A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of a dwelling house therein.'

12. In the light of the foregoing provisions, it is made clear that the provisions of Section 6 of the Constitution of Jammu and Kashmir dealing with permanent residents and lawfully acquiring Citizenship of India shall be entitled to participate in the 'election of Assembly either as a voter or as a representative to be elected.

13. Therefore when we consider both the provisions of Section 6 of the Constitution of Jammu and Kashmir vis-a-vis the above provisions of the Representation of People Act, 1957, unless the writ petitioners (appellants) either continue to be residents of that area which is now called POK area and continue to enjoy the Citizenship of India, cannot either exercise the right of franchise seeking to vote in that area or intending to contest as representatives to be elected from that area in the light of the limitation provided under Section 6 of the Constitution of Jammu and Kashmir. In that view of the matter it would be illogical and un-under-stand able seeking for a writ of mandamus against the State for providing 25 more seats in the Legislative Assembly election in the State which would run contrary to Section 6 of the Constitution as long as the number of seats having been refixed by the Delimitation Commission at 75 in the light of the provisions of Sections 6, 47 and 48 of the Constitution of Jammu and Kashmir, the relief sought for by the petitioners cannot be granted unless the amendment of 1975 is challenged. Any way that is not the prayer in the writ petition.

14. Shri Lehar has not been able to persuade this Court to take a different view than the one expressed by the learned Single Judge in dismissing the writ petition in limine. Therefore we do not see any good ground to allow the writ petition.

15. In the result we make the following order: This appeal stands dismissed. Parties to bear their own costs.


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