SARFAESI Act review: Govt sacks standing counsel before SC but why?

SARFAESI Act review: Govt sacks standing counsel before SC but why?

Record accessed by Kashmir Reader shows successive govts never opposed Act’s implementation
Srinagar: The state government has sacked its standing counsel before Supreme Court for “refusal” to file a review plea to dispute the top court’s ruling on Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).
But is it merely political manoeuvring or is the state government really interested to see the apex court review its December 16 ruling that set aside the high court’s July 2015 judgment that said the SARFAESI Act, enacted by Indian Parliament, cannot be enforced in J&K as the State has its own Constitution and sovereign character which cannot be challenged, altered or abridged.
“I have resigned because lot of pressure was being mounted on me to file the review petition,” said Sunil Fernandes who remained state’s chief standing counsel from September 2015 during his second stint.
Asked for reasons to decline what otherwise seems to be his bounden duty, Fernandes told Kashmir Reader that the state “wanted me to file the review without providing anything in writing.”
While he refused to comment further, it has been reliably learnt that Fernandes had told the state government that there no valid legal ground for filing a review petition.
Sources said that as the state insisted on the review, he had sought instructions in writing but there was no response.
Law Minister Abdul Haq Khan and advocate General Jahangir Iqbal Ganie were unavailable for comment despite several calls and messages. While the state’s highest law officer didn’t reply at all, the minister’s phone was responded by his staff who said: “he is busy, kindly call later.” Repeated calls evoked the same response: “he is still busy, kindly call later.”
While time will tell whether state will file any review plea before apex court, record accessed by the Kashmir Reader indicates that successive governments have never been opposed to the implementation of the SARFAESI Act in Jammu and Kashmir.
In the written submissions, the ruling PDP-BJP government submitted before the top court though the SARFAESI Act was enacted by Parliament, Section 13(4) alone incidentally encroaches upon the property rights of state’s permanent residents and must be “read down” so that it will not be permissible under this Section to sell property belonging to a permanent resident of the State to a person who is not a permanent resident of the State.
The plain reading of the written submissions would reveal that state did not sought upholding of the high court’s judgment but wanted the proviso added to Rule 8(5) of the SARFAESI Rules be read along with Section 13(4) of the SARFAESI Act.
The proviso states: “Provided that in case of sale of immovable property in the State of Jammu and Kashmir, the provisions of the Jammu and Kashmir Transfer of Property Act, 1977 shall apply to  the person who acquires the said property in the State.”
In fact, the proviso was added by a way of an amendment in 2013, nearly two years after former Chief Minister Omar Abdullah wrote a letter on 15-July-2011 to then Indian Finance Minister Pranab Mukherjee.
“In view of the constitutional position, the provisions of SARFAESI Act in so far as they relate to transfer of property including the right to transfer by way of lease, assignment or sale to realise the secured interest cannot have application to the State of Jammu and Kashmir, as the same are beyond the legislative competence of Parliament,” Omar had said and urged the finance minister for personal intervention in the matter to get the “inconsistencies addressed by making a suitable provision in the SARFAESI Act in favour of J&K State.”
“This will then lead to removal of the impediments in the implementation of the Act, and effectively address the concerns of the banks in the State,” Omar had said as per the letter, a copy of which lies with Kashmir Reader.
In its judgment, the apex court had held: “It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. They (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir.”

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