Srinagar: In a move that is likely to irk the PDP, the government of India has challenged the high court’s landmark ruling that last year said the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act cannot be enforced in J&K as it will undermine state’s special status.
In the judgment, listed among the 12 landmark verdicts delivered by the high court last year, the court had said that a law made by the Parliament, which affects the laws made by J&K legislature, cannot be extended to the state.
The court had said that implementation of the law in the state will adversely impact the demographic composition of the state.
Supreme Court bench of Justices Kurian Joseph and Rohinton Fali Nariman issued a notice to the J&K government after hearing government of India’s Special Leave Petition.
It also directed the registry to tag the SLP with a similar petition filed by the State Bank of India. The pleas are likely to come up for hearing on March 28.
The apex court passed the directions after hearing Attorney General of India Mukul Rohtagi.
The high court’s 16 July 2015 judgment followed GoI’s stand that SARFAESI Act was valid and “capable of being enforced in the State of J&K.”
In the Agenda for Alliance, PDP and BJP had agreed that controversial issues, especially those aimed at assailing the special status of J&K, will not be touched by the ruling NDA government or raised by the Sangh parivar.
In a 76-page detailed judgment, the high court had said that the Act, which was enacted by Indian parliament in 2002, modifies the State Transfer of Property Act, State Civil Procedure Code, Civil Courts Act and State Limitation Act.
“It also affects the rights of State subject/citizens recognized by the Constitution of India and Constitution of State of J&K,” the bench said, ruling that the Parliament lacks competence to make laws affecting immoveable property rights of the state subjects.
The court further noted that only J&K, by virtue of the section 5 of the Constitution of J&K, has the absolute sovereign power to legislate laws touching the rights of its State subjects/citizens regarding their immoveable properties.
“The State legislature, in terms of section 140 of Transfer of Property Act, 1882, has authorized for mortgage of property in favour of the Institutions mentioned therein. The sale of immoveable property in pursuance to a Civil Court Decree obtained by the bank/financial Institution in respect of the mortgaged property cannot be made in favour of the non-state subjects,” the judgment said.
Referring to Article 35(A) of the Constitution of India, the high court said that it clarifies constitutional relationship between people of rest of India with people of J&K. “It is in essence an information to the citizens of rest of country that on constitutional and legal plank they in all respects do not constitute a class with citizens of state of Jammu and Kashmir,” the court had said and held that the citizens of J&K have their own constitution, and their sovereign character which cannot be challenged, altered or abridged.
“The power of Parliament to make laws in respect of J&K is circumscribed and it can make laws for it only where permitted by State and not otherwise, and that too in accordance with mechanism prescribed by Article 370 of Constitution of India,” the court had said.