BACHAN LAL KALGOTRA versus STATE OF JAMMU & KASHMIR AND OTHERS

Citation: [1987] 2 S.C.R. 369 · Decided: 20-02-1987 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Dismissed

Judgment (excerpt)

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BACHAN LAL KALGOTRA 
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v. 
STATE OF JAMMU & KASHMIR AND OTHERS 
FEBRUARY 20, 1987 
[0. CHINNAPPA REDDY AND S. NATARAJAN, JJ.] 
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Constitution of lammu & Kashnir: S.6 Constitution of India: 
Article 35A. 
lammu & Kashmir Resettlement Act, 1982-Va/idity of-
Refugees from West Pakistan-Citizens of India-Domiciled in l & K 
State for forty years-Denied permanent resident status and basic rights 
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of citizenship-Right to acquire immovable property in the State, right 
to employment under the State, right to higher technical education and 
right to be elected to the State Assembly and local bodies-Permissi-
bility of. 
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The refugees from West Pakistan who had migrated Into the State 
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of Jammu and Kashmir In 1947 and had been domiciled In that State for 
nearly forty years are not permanent residents as defmed in s.6 of the 
Jammn·and Kashmir Constitution, with the result that they were disen-
titled to be included In the electoral rolls of the State Assembly, to be 
elected to village Panchayats, to be appointed to any service nnder the 
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State Government by direct recruitment, to purchase land In the State 
and to be admitted to higher technical educational institutions nnder 
the relevant Acts and Rules. Section 6(2) of the Jammu and Kashmir 
Constitntion, however, provides that permanent State snbjects who had 
migrated to West Pakistan In 1947 shall be permanent residents of the 
State on their return to the State nnder a permit for resttlement, 
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thereby entitling them to all the above rights. 
The petitioner, who claimed to speak on behalf of the refugees 
from West Pakistan settled in the State, claimed that he and other 
persons situated like him should at least be given the same rights as are 
given to those who had voluntarily migrated to West Pakistan at the G 
time of partition in 1947, on their return to the State for resettlement. 
Dismissing the writ petition, the Court, 
HELD: Section 12(1)(b) of the Jammu and Kashmir Representa-
tion of the People, Act 1957 disqualifying a person for registration In an H 
369 
370 
SUPREME COURT REPORTS 
[1987] 2 S.C.R. 
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electoral roll if he is not a permanent resident of the State as defined in 
s.6 of the Constitntion, s.S(a) of the Village Panchayat Act, J956 dili-
qnalifying snch a person for being chosen as or for being me!Dber of a 
Panchayat, s.4 of the Land Alienation Act, 1995 B.K. prohibitbig trans-
fer of, land in favour of any person who is not a State subject, and 
r.17(a) of the Jammu and Kashmir Civil Services (Classification, Con-
trol and Appeal) Rules, 1956 rendering ineligible a person who is not a 
hereditary State subject for appointment to any service under the State 
Government by direct recruitment are not open to challenge as incon-
sistent with the rights guaranteed by Part III of the Constitution of 
India because of the "Constitution (Application to Jammu & Kashmir) 
Order, 1954" issued by the President of India under Art. 370(1)(d) of 
the Constitution, by which Art. 35A was added to the Constitution in 
relation to the State of Jammu and Kashmir. (374B-E] 
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The petitioner and those like him have a justifiable grievance. 
They have very anomalous rights within the State. Though citizens of 
India and entitled to the various fundamental rights guaranteed by the 
D Constitution they are not in· a position to enjoy many of those rights 
within that State in which they are domiciled for nearly'40 years. In 
view of the peculiar consitutional position obtaining in the State, it is 
upto the legislature of the State to take action to suitably amend legisla-
tions, and for the State Government to amend Service Rules and issue 
appropriate executive instructions to make these persons eligible to 
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exercise greater rights of citizenship. They coostitute nearly seven to 
eight per cent of the population of the State. Surely, they art' entitled to 
expect to be protected by the State. (376A-C] 
The Union of India, in the peculiar context of the State also owes . 
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an obligation to make some provision for the advancenient of cultural, 
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economic and educational rights of these persons. (37611] 
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ORIGINAL JURISDICTION: Writ Petition (Civil) No. 7698 of 
1982. 
(Under Article 32 of the Constitution of India). 
M.S. Ganesh, (Amicus Curiae) for the Petitioner. 
K. Parasaran, Attorney General, Altaf Ahmed, Adv. Genl., 
S.K. Bhattacharya, Ms. A. Subhashini and H.C. Paonam for the 
Respondents. 
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