Over the years, a number of women who had married and settled outside the state had knocked at the doors of the courts seeking their right to stay as state subject. The first woman who challenged the order was Nuzhat Parveen. The then revenue minister passed decision in her favour but another administrative order put a rider on that decision saying it should not form precedent. Later, however, as many as twelve petitions challenging the gender-specific order were filled before the High Court. The women petitioners want the law to see how the domicile laws are gender biased.
The High Court clubbed all these petitions together and sent it to the full bench. On October 6, 2003 the full bench comprising Justices V K Jhanji, T Doabia and Muzaffar A Jan ruled that female marrying outside will neither lose the state subject status nor the right to inherit property or employment. However, Justice Muzaffar Jan – the only local judge in the three-judge bench, recorded his 24-page dissent to the judgment which forms parts of this historic document.
This ruling changed the system completely. In the larger public interest, the verdict is published here. First it is the judgment of the two members of the bench which is followed by the dissent of Justice Jan.
Jammu High Court
State Of Jammu & Kashmir, Dr. … vs Dr. Susheela Sawhney And State Of … on 7 October, 2002
Author: V Jhanji
Bench: V Jhanji, T Doabia, M Jan
V.K. Jhanji, J.
1. The Reference to the Full Bench is ;
“Whether the daughter of a permanent resident of the state of Jammu & Kashmir marrying a Non Permanent resident loses her status as a permanent resident of the State of Jammu & Kashmir, to hold , inherit and acquire immovable property in the state ? “
2. In fact the loss or absence of status as a permanent resident of the state of Jammu & Kashmir disentitles a person not only in respect of acquisition of immovable property in the state, but also in respect of employment in the state and the right to scholarship and such other forms of aid as the State Government may provide. The issue, there fore, is :
” Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir ? “
3. For proper understanding of the issue, it is expedient to notice the facts of each case, which have given rise to the reference for the constitution of the Full Bench.
LPA (sw) No. 27/79 C/w LPA (ow) No. 24/79, State of Jammu & Kashmir Vs. Dr. Susheela sawhney and Dr. Ravinder Maadan Vs. State of Jammu & Kashmir & anrs.
4. Writ petitioner, Dr. Susheela Sawhney, was working as Assistant Professor in obstetrics and Gynecology Department, Govt. Medical College, Jammu on adhoc basis. She alongwith respondent No. 2 Dr. Ravinder Maadan, applied for being appointed as a assistant Professor in the department of obstetrics and Gynecology, Govt. Medical College, Jammu. Dr. Ravinder Maadan was selected for the above said post. Dr. Susheela Sawhney challenged the selection of Dr. Ravinder Maadan on the ground that she was married to a non State Subject. The learned Single Judge quashed the order of appointment of Dr. Ravinder Maadan. The state as well as Dr. Ravinder Maadan have filed two separate Letters patent Appeals against the Judgment of the learned Single Judge.
5. In Civil Revision No. 1277 80, Harjeet Singh Vs. Amarjeet Kour, Plaintiff Amarjeet Kour filed suit in the court of sub judge, Handwara, stating therein that her father, Ram Singh, died in the month of July, 1977, leaving behind the plaintiff, defendants 1, 2, 3 & 5 legal heirs. She pleaded that for purpose of succession, she is governed by the provisions of the Hindu succession Act and is entitled to equally share the property left behind by her father. The defendants contested the claim of the plaintiff by pleading that the plaintiff being married to a non permanent resident of the state is debarred from inheriting the property of her father. The trial Court held that the plaintiff is entitled to inherit the suit property as heir of her father, Ram Singh. Revision petition has been filed by defendant, Harjeet Singh to challenge the order of the trial court.
6. In OWP No. 166/85 Dr. Abha Jain Vs State of Jammu & Kashmir, Dr. Abha Jain applied for the post graduate course in the discipline of Gynecology. She was asked to produce a permanent resident certificate ‘after marriage’ on or before 20th April, 1985, failing which she was not to be considered for admission to the Course. She was, however, allowed to appear in the entrance test at her own risk and responsibility. She applied to the Deputy Commissioner, Jammu for issuance of permanent resident Certificate ‘after marriage’. Apprehending that she would not be issued the certificate, she filed writ petition, seeking a direction for quashing for the communication received ‘after marriage’ on ground that she is permanent resident of the State of Jammu & Kashmir even though she may have married a non-state subject.
7. In OWP No. 171/96 Anjali Khosla Vs State of Jammu & Kashmir, the petitioner, Anjali Khosla, applied for issue of the permanent resident Certificate which was issued to her by the Additional Deputy Commissioner, Jammu, with a condition that the same would remain valid till marriage. Petitioner got married to one Mr. Raj Khosla, a resident of New Delhi, who was a non State Subject. She applied to the Deputy Commissioner, Jammu for deletion of the condition ‘Valid Till Marriage’ on the ground that the condition imposed was illegal and unwarranted. The Deputy Commissioner, Jammu transferred the application of the petitioner to Addl. Deputy Commissioner, Jammu who has refused to delete the said condition. The petitioner has challenged the order of the Additional Deputy Commissioner.
8. In OWP No. 191/92 Kamla Rani Vs state of Jammu & Kashmir, the petitioner, Kamla Rani is daughter of Amar Nath, a permanent resident of the State of Jammu & Kashmir. One Kishan Chand filed a Compliant before the Deputy Commissioner, Udhampur, alleging that the petitioner has lost the Status of a permanent Resident of the State, after having married out-side the State of Jammu & Kashmir, But has obtained a permanent resident Certificate by concealing her marriage to a non-State Subject. The Revenue minister took cognizance of the complaint and, treating it as a revision petition, sent it to the Jammu & Kashmir Special Tribunal, Jammu. A notice was issued to the petitioner to show cause as to why the revision petition be not admitted. The petitioner made an application before the Jammu & Kashmir Special Tribunal for being heard in the matter. She though brought to the notice of the Tribunal that the matter is pending consideration before the High Court, yet the certificate issued to her has been cancelled. Petitioner has challenged the order of the J&K Special Tribunal.
9. In OWP NO. 520/94 Dr. Reeta Gupta Vs State of Jammu & Kashmir, petitioner, Dr. Reeta Gupta, passed her M.B.B.S. from the university of Jammu in the year 1983. There-after, she was appointed as Assistant Surgeon in the Health Department in November, 1985. She got married to Dr. Raj Deep, a non-State subject. Dr. Reeta Gupta did her post Graduation Course in the year 1989 from Govt. Medical College, Srinagar in Dermatology and STD. She was appointed as Assistant Surgeon in the department of dermatology, Govt. Medical College, Jammu and therefore, was selected and appointed as a Registrar in the same Department w.e.f. 5th of May, 1992 and at the time of filing of the writ petition was continuing as such J&K Public Service Commission invited applications from eligible candidates for the post of Lecture in the Discipline of Dermatology in Medical Education Department, petitioner applied for the said post, but her application has been rejected by the commission Vide Communication No. PSC/Rectt/Lect/Dr.94/2 dated 10-06-1994 on the ground that she does not possess the requisite certificate. Petitioner has challenged the action of the commission in the writ petition.
10. In OWPno. 1111/85 Sunita Sharma Vs State of Jammu & Kashmir, the petitioner, Sunita Sharma, obtained a permanent resident Certificate from Deputy Commissioner, Jammu . At the time of issuance of the certificate, a condition was placed that the certificate would be valid till marriage. In the writ petition, the petitioner has challenged such entry made on her permanent resident certificate being violative of her fundamental rights guaranteed under the Constitution of India and discriminatory on the bases of sex.
11. In OWP No. 152/1985 Dr. Rubeena Nassarullaha Vs State, the writ petitioner has challenged the action of the state where by she has been deprived of her right to pursue her education in the State only on the ground that she has married a non-permanent resident of the State.
12. In OWP No. 52/97 Shabnam Taj Vs State of Jammu & Kashmir, petitioner Shabnam Taj, passed her M.B.B.S. Course in the year 1993. Her parents have been permanent resident of the State. The Certificate of the permanent resident issued to her contained a condition that it would be valid only till marriage. Petitioner got married, she applied for the post of the Assistant Surgeon . Alongwith her application, she submitted all the required certificates, except the permanent resident certificate ‘after marriage.’ Public Service Commission has refused to accept her application form in the absence of the said certificate. Petitioner has challenged the refusal of the Commission to entertain her application.
13. In SWP NO. 650/98 Shruti Vs state of Jammu & Kashmir, the petitioner, born on 18th November, 1969 is daughter of a permanent resident of the state of Jammu & Kashmir. She Graduated from Government Woman College, Gandhi Nagar, Jammu and thereafter passed Post Graduation Course from the University of Jammu. She was appointed as adhoc Lecturer in Chemistry in Govt. Women College, Parade, Jammu and then in Govt. Women College, Gandhi Nagar, Jammu. Thereafter the petitioner was appointed as a Teacher on regular basis in the Education Department till she was appointed as Research Assistant on 05-07-1993. The post of Research Assistant in the Science and Technology Department was advertised in December, 1994 vide notification dated 19-12-1994. Petitioner applied for the said post. At the relevant time, she was unmarried. She appeared in the written test and successfully qualified the same viva voice was conducted in Regional Research Laboratory. On the basis of her performance and merit, the petitioner was selected as Research Assistant and consequently appointed on 05-07-1995. At the time of written test and viva voce, she was unmarried. However, on 05-07-1995 she got married. Petitioner joined her service on 5th July, 1995. She received letter dated 15-01-1998 from the Joint Director (L) State Council of Science and Technology asking her to produce the permanent resident Certificate, ‘after marriage’. She replied that she has not obtained the certificate after marriage and the certificate, which was available with her before marriage has already been submitted. She requested for the release of the salary has not been paid salary because she does not possess the permanent resident Certificate ‘after marriage’. Petitioner has challenged this action of the respondents.
14. In OWP No. 857/2001, Ranju Modi Vs. State of J&K, petitioner Ranju Modi, passed her MBBS from University of Jammu in Aug. 1990. She did her internship for a period of one year. She was also registered by the Jammu & Kashmir Medical Council under No 4370 dated 04-10-1991. Vide Notification dated 31-08-2001, applications were invited from the candidates to appear in the entrance test for MD/MS/PG/ Diploma Courses in Govt. Medical Colleges of the State for the Session 2001-2002. Petitioner also submitted her application form alongwith all the documents. However, her application has not been accepted on the plea that her permanent resident certificate is valid only till marriage. Petitioner who is married to a Non -State subject has challenged the action of the respondents for not accepting her application from for the examination to the Post- Graduation Course.
15. It is in the back drop of the afore-said facts, that all the matters mentioned herein above have been referred to the Full Bench for determination of the question quoted at the out-set in this judgment.
16. Learned Advocate General Mr. M.A. Goni, contended that a female descendant of a permanent resident of the State on marriage to a non – permanent resident of the State would lose the status of permanent resident of the State and she would not be a permanent resident of the State as defined under Section 6 of the State Constitution. He submitted that by marrying a non -permanent resident of the State, a Female descendant of a permanent resident of the State will not only lose the property which she may have acquired in the State before marriage as a permanent resident of the State but also she would also lose all special rights and privileges like employment under the State Govt; right to scholarship or any other such privileges as the Govt. may provide. He further submitted that the status of the wife or the widow depends upon the status of the husband and in case she ceases to reside in the State and takes permanent residence out-side the State she would lose the status acquired by marriage with the permanent resident of the state.
17. Mr. Z.A. Shah, learned counsel appearing for the interveners, however, adopted a middle course. He stated that when a female descendant of the permanent resident of the State enters into a matrimonial alliance with a non -permanent resident, then she will lose her status as permanent resident, but will continue to hold property which she may have acquire before marriage and will not be entitled to acquire further property. He submitted that similar is the position with regards to scholarship and other privileges which she may have acquired before such marriage. Same consequence, it is urged will ensue, when a wife or widow who enjoys the same status of permanent resident of the state as that of her husband when she leaves the State for permanent residence out-side the State.
18. Against this Mr. Promod Kohli, Senior Advocate and other learned counsel appearing on behalf of the appellants/writ – petitioners and the plaintiff in Civil Revision No. 127/80 submitted that if the position, as stated by the learned Advocate General and Mr. Z.A. Shah is accepted then it would lead to discrimination based on the sex. Learned counsel submitted that no discrimination based on sex can be made as it would be contrary to the provisions of the Constitution of India as also the State Constitution. Reference in this regard is made to the preamble of the State Constitution , which provides equality of status and liberty also to Section 10 of the State Constitution which provides that the permanent residents of the State shall have the rights guaranteed to them under the Constitution of India.
19. In order to appreciate the respective contentions of the learned counsel for the parties and for the proper analysis of the definition of ‘permanent Resident’ of State of J & K, it shall be necessary, to take notice of the relevant provisions of the Constitution of India, Constitution of Jammu and Kashmir and also the Notification issued by the State as referred to in Sub-section (3) of Section 6 of the Constitution of J & K (herein after for a short referred to as ‘the State Constitution’).
20. On 15th Aug. 1947, at the commencement of Indian Independence Act 1947, unlike any other erstwhile Indian State under the paramountency of British Crown, the State of Jammu & Kashmir was a full sovereign State, with an independent King, who was competent to enact the law for the people of the State. On 25th October, 1947, then Maharaja Hari Singh, singed an Instrument of Accession with the Govt. of the Dominion of India and since this instrument of Accession was similar in context and form to those signed by the Rulers of other acceding States, the State of J & K occupied the same position as other native States. Hence, after the commencement of the Constitution of India, the State was included as part- B State in the 1st Schedule of the Constitution. Therefore, by the force of the Article 1 of the Constitution it became a part of the territory of India. Nevertheless the State of Jammu & Kashmir occupies a special position in the federal set up of the country. Most of the Constitutional provisions donot apply to the State by their own force. Their application to the State of J& K depends upon the president, who is empowered to apply them with such expectations and modifications as he may by order specify. The only Constitutional provisions, which have application by their own force, are Articles 1 and 370 of the Constitution of India.
21. The Constitution (application to J & K) order, 1954, made by the President in exercise of the power conferred by Clause (1) of Article 370 of the Constitution, extended the provisions of Constitution of India, including part II (with certain exceptions and. modifications) to the State of J & K with retrospective effect from January 26, 1950. These modification so far as relevant for the present purpose are that a further proviso has been added to Article 7 and a New Article, namely, Article 35A has been inserted. The further proviso to Article 7 is as follows :
“Provided further that nothing in this Article shall apply to a permanent resident of the State of J & K, who, after having so migrated to the territory now included in Pakistan , returns to the territory of that State, under a permit for resettlement in that State, or permanent return issued by or under the authority of any law made by the Legislature of that State, and every such person shall be deemed to be a citizen of India.
Article 35- A provides :
“35-A. Saving of laws with respect to permanent residents and their rights :-
22. Notwithstanding anything contained in this Constitution, no existing law in force in the State of J & K and no law hereafter enacted, by the Legislature of the State:-
(a) defining the classes of a persons who are, or shall be, permanent residents of the State of Jammu & Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restriction as respects; (i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) Settlement in the State; or
(iv) right to Scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizen of India by any provisions of this part.”
Part-II of the Constitution with the above modification Article 7 has been extended to the State of J & K with retrospective effect from January 26, 1950.
23. The Constituent Assembly of the State of J & K made provisions relating to ‘permanent resident’ by inserting sections 5-A to 5-F in the J & K Constitution Act, 1956. These sections are quoted here under :
“5-A. Every person who is or is deemed to be a citizen of India under the provisions of part-II of the constitution of India as applied to the State of J & K under the Constitution (Application to Jammu & Kashmir) order, 1954 shall be permanent resident of the State of Jammu & Kashmir if it at the date of Commencement of the Jammu & Kashmir Constitution (Amendment) Act, 2001, namely, the 14th May, 1954;
(a) he was a State subject of class -II as defined in the State Subject Notification No. 1-L/1184 dated 20th April, 1927, read with notification No. 13/L dated 27th June, 1932; or
(b) after having acquired immovable property in the J & K State in Pursuance of an Ijazatnama granted under the Izajatnama Rules for the time being in force, he has been ordinarily resident in the territory of the State for not less than ten years prior to the date of such commencement.
Explanation :- All persons who before* the commencement of the Constitution (Application to Jammu & Kashmir) order 1954, were State subjects of Class-I or Class-II as defined in the State subject Notification No. 1-L/84 dated 20th April, 1927, read with Notification No. 13/L dated 27th June 1932, 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 permanent return issued by or under the author ity of any law made by the State Legislature shall continue to be deemed permanent residents of the State.
5-B. Notwithstanding anything contained in the foregoing provisions of this Act, every company which, immediately before the commencement of the Constitution (Application to Jammu & Kashmir) order 1954, was recognized to be State Subject with in the meaning of State Subject Notification No. 1-L/84 dated 20th April, 1927 shall be deemed to be a permanent resident at such commencement.
Explanation: In this section ‘Company’ shall have the meaning assigned to it in the Jammu & Kashmir Companies Act, 1927.
5-C: Every person, who is or who is deemed to be a permanent resident of the State of Jammu & Kashmir, shall subject to the provision of any law that may be made by the State Legislature, Continue to be such permanent resident.
5-D: The power of the State Legislature to define the term ‘permanent resident’ of the State and to regulate their special rights and privileges shall be exercisable only by a majority of not less than two- thirds of the total membership of the Legislative Assembly. 5-E: Nothing contained in the foregoing provisions shall derogate from the power of the State Legislature to make such Laws as it thinks fit with respect to the acquisition of the status of the permanent resident and until the State Legislature enacts provisions in that behalf the existing Izajatnama Rules shall continue to remain in force and the existing procedure for obtaining a State Subject certificate shall be followed for the purpose of securing the certificate of being a permanent resident of the State.
5-F : Unless the context otherwise requires, all reference in the existing laws of the State to the expression ‘State Subject’ shall be construed as reference to the permanent residents of the State.”
24. The Jammu and Kashmir Constitution Act, 1956, was repealed by the Constitution of J & K. This Constitution was adopted by the Constituent Assembly of Jammu & Kashmir on Nov. 17, 1956. Sections 1,2 to 8 and 158 came into force on the date of the adoption of the Constitution and remaining sections on January 26, 1957.
Part-III of the Constitution of Jammu & Kashmir, Consisting of Sections 6 to 10 deals with permanent resident of the State. Under Sub Section (2) of Section 1 of the Constitution Section 6 to 8 came into force on October 26, 1956 and sections 9 & 10 on January 26, 1957. Sections 6 to 10 provide as follows :
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 permanent resident of the State, if on the fourteenth day of May, 1954-
a) he was a State Subject of Class-I or 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 that 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 by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.
(3) In this section, the expression ‘State Subject of Class-I or of Class-IP shall have the same meaning as in the State Notification No. l-L/84 dated the Twentieth April, 1927, read with State Notification No. 13/L dated the Twenty- Seventh June, 1932.
7. Construction of reference to the State Subjects in existing laws – unless the context otherwise requires, all references in any existing law to hereditary State Subjects or to State Subject of Class-I or Class-II or of Class-Ill shall be construed as references to the permanent residents of the State.
8. Legislature to define permanent residents- Nothing in the foregoing provisions of tis part shall derogate from the power of the State Legislature to make any law defining the classes of person who are, or shall be permanent residents of the State.
9. Special provision for Bills relating to permanent residents – A Bill making provision for any of the following matters, namely-
a) defining of altering the definition of the classes of persons who are, or shall be permanent residents of the State;
b) conferring on permanent residents any special rights or privileges;
c) regulating or modifying any special rights or privileges enjoyed by permanent residents;
shall be deemed to be passed by either House of the Legislature only if it is passed by a majority of not less than two-third of the total membership of that House.
10. Rights of the permanent residents – The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India.
25. By reason of the application of Part-II of the Constitution of India with retrospective effect from January 26, 1950 to the State of Jammu & Kashmir, the people of J & K have become citizens of India w.e.f. January 26, 1950, if they satisfy the conditions provided by Articles 5,6 or 8 of the Constitution of India. A permanent resident of the J& K, who has migrated to Pakistan but return to J & K under the permit for resettlement in the State or permanent return will also be deemed to be a citizen of India under the further proviso to Article 7 inserted by the Constitution (Application to Jammu and Kashmir) order, 1954. The fact that a person, who has been granted a certificate by the Competent Authority that he is a Subject of the Jammu and Kashmir State, but is staying in a portion of the State which is in occupation of Pakistan cannot deprive him of his status as a ‘Subject of the State’ unless, it be shown that he has permanently migrated to Pakistan.
26. As Articles 10 and 11 of the Constitution of India have been extended to the State of J & K, the Citizenship Act, 1955 extends to the State.
27 Section 7 of the State Constitution provides that all references in any existing law to ‘hereditary State Subject’ or to the ‘State Subject of the Class I or of Class-II or of Class-Ill shall be construed as references to ‘Permanent residents’ of the State.
28. From the definition of ‘Permanent resident’ as contained in Section 6 of the State Constitution, it is clear that in order to be ‘permanent resident’ of the State, the first and foremost qualification is that such a person must be citizen of India, or must be deemed to be a citizen of India under the Constitution of India. The second qualification for being a ‘permanent resident’ of the State under the Section 6 of the State constitution is that on 14th May, 1954, such an Indian Citizen should have been a ‘State Subject of Class-I or of Class-IP, or should have been lawfully acquired immovable property in the State and been ordinarily resident in the State for not less than ten year prior to that date. The significance of this date, 15th May, 1954 is that on this date, the President of India, by virtue of the power vested in him under Clause (I) of Article 370 of the Constitution of India, made certain previsions of the constitution of India applicable to the State of J & K under the Constitution (Application to Jammu and Kashmir) order, 1954. As noticed earlier, Part-11 of the Constitution, relating to citizenship, was also made applicable and it is provided that this part shall be deemed to have been applicable in relation to the State of J & K as from 26th of day of January, 1950, when the Indian Constitution came into force.
29. Sub-Section 3 of the Section 6 of the State Constitution provide that the expression ‘State Subject of the Class-I or of Class-II’ shall have the same meaning as the State Notification No. 1-L/84 dated the Twentieth April, 1927, read with the State Notification No. 137 L dated Twenty- Seventh June, 1932.
30. Before noticing Notification No. 1-L784 dated 20th April 1927 and the Notification No. 137 L dated 27th June 1932, it will be expendient to notice that the first statutory measure to define ‘hereditary State Subject’ was taken, by order of the Maharaja Hari Singh issued under his Private Secretary’s Circular order No. ps-2354 dated January 31, 1927 and the definition of the expression ‘hereditary State Subject’ as contained in the second part of the afore-said circular order dated Jan. 31, 1927, was as under :
“For the purpose of this order the term ‘hereditary State Subject’ will be held to mean and include all persons born and residing with in the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur and also persons who settled therein before the commencement of Samvat 1942 and have since been permanently residing therein.”
31. The above definition follows the command of His Highness contained in the first para of the said circular order to the effect:
“In future in case of every new entrant into the State service, the authority empowered to make the appointment should certify that he has satisfied himself after due enquries that the person appointed is a hereditary State Subject”.
32. Notification l-L/84 dated 20th April, 1927 replaced the aforesaid circular order by necessary implication. The term ‘State Subject’ was substituted for ‘Hereditary State Subject’ . The state Subject were divided into three classes. The State Subject of Class-I, being the same as the hereditary State Subjects defined in the earlier circular order, and those of Class-II, being the person who settled within the State before the close of the samvat year 1968 and had since permanently resided and acquired immovable property in the State. The State Subject of Class-Ill, were all persons other than those belonging to Classes I and II, permanently residing within the State, who had acquired under ‘rayatnama’ any immovable property in the State or who may there after acquired any such property under an Izazatnania and may executed a ‘rayatnama’ after ten years continuous residence therein.
33. The Notification dated 20th April 1927 was followed by Notification No. 13/L dated 27th June, 1932 under the command of the Maharaja with a view to determine the status of the State Subjects in foreign States and to inform the Government of the foreign States as to the position of their nationals in the State of J & K. notification dated 20th April 1927 and 27th June, 1932 are quoted hereunder:
“STATE SUBJECT DEFINITION”
(1) Notification dated the 20th April 1927 No. 1-L/8.4- The following definition of the term ‘State Subject’ has been sanctioned by His Highness the Maharaja Bahadur (Vide Private Secretary’s letter No. 2354, dated the 31st January 1927 to the Revenue Member of Council) and is hereby promulgated for general information.
34. The term State Subject means and includes-
Class-I : All persons born and residing with in the State be fore the commencement of the re gion of his highness of the late Maharaja Gulab Singh Sahib Bahadur, and also person who settled therein before the commencement of samvat year 1942 and have since been permanently residing therein.
Class-II: All persons other than those belonging to Class-I who settled within the State before the close of samvat year 1968 and have since permanently resided and acquired immovable property therein;
Class-III: All persons, other than those belonging to Class-I and Class-II permanently residing within the State, who have acquired under rayatnama any immovable property therein or who may hereafter acquire such property under an Izazatnama and may execute a rayatnama after ten years continuous residence therein.
Class-IV: Companies which have been registered as such within the State and which being companies in which the Govt. are financially interested or as to economic benefit to the State or to the financial stability of which the Govt., are satisfied, have by a special order of his highness been declared to be State Subjects.
Note-I: In matters of grant of the State scholarships, State Lands, for agricultural and house building purposes and recruitment to State Service, State Subject of Class-I should receive preference over other classes and those of Class-II, over Class-Ill, subject however, to the order dated 31th January 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State Subjects in Government Service.
Note-II: The descendants of the persons who have secured the Status of any Class of the State Sub jects will be entitled to become the State Subjects of the same class. For example, if A is declared a State Subject of Class-II his sons and Grandsons will ipso facto acquire the status of the same Class (II) and not of Class-I.
Note-Ill: The wife or a widow of the State Subject of any Class shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.
Note-IV: For the purpose of the interpretation of the term ‘State Subject’ either which reference to any law for the time being in force or other wise, the definition given in this Notification as amended upto date shall be read as if such amended definition existed in this Notification as originally issued.
(Issued by order of His Highness the Maharaja Bahadur dated Srinagar, the 27th June, 1932 14th March 1939, published in the Govt. Gazette dated 24th March 1989). No. 13-L/1989- whereas it is necessary to determine the status of J&K State Subjects in foreign state as to the position of their nationals in the state, it is hereby commanded and notified for the public information, as follows:
1. That all emigrants from the J&K State to the Foreign territories shall be considered State Subject and also the Descendents of these emigrants born abroad for two generations.
Provided that, these nationals of the Jammu & Kashmir State shall not be entitled to claim the internal rights granted to subjects of this State by laws, unless they fulfill the conditions laid down by those laws and rules for the specific purposes mentioned therein.
2. The foreign nationals residing in the State of J&K shall not acquire the nationality of J&K State until after the age of 18 on purchasing immovable property under permission of an ijazatnama and on obtaining a rayatnama after ten years continuous residence in the J&K State as laid down in Notification No. 1-L of 1984, dated 20th April 1927.
3. Certificates of nationality of the J&K State may, on application be granted by Minister-in-charge of the Political Department in accordance with the provisions of Section 1 of this notification.
35. A Permanent resident of the State of J&K enjoys special privileges. Ghulam Shah in his book “State Subjectship in Jammu & Kashmir” has rightly commented that “While a permanent resident who in terms of Section 6 of the Constitution of J&K is essentially a Citizen of India under the Constitution of India, he has the additional rights and privileges to the exclusion of the other non-permanent resident, such as the right of suffrage to the Legislature of the State, to the local bodies and other institutions, preferential claims to the service and scholarships and above all to the exclusive rights for the acquisition and possession of immovable property in the State. Being a Citizen of India, a permanent resident of the State is therefore, eligible to hold the office of the President of India, Vice President, Judge of the Supreme Court of India or of a High Court of any other State, Attorney General Of India or Governor or Chief Minister of any State in India, but a non-State subject cannot became Chief Minister or a minister or a Member of the Legislature in the State of J&K.”
36. In Sub-section (1), (2), and (3) of Section 6 of the State Constitution reference is made to the State Subjects of Class-1 and of Class-II only. Persons and companies defined as State Subjects of Class-Ill and IV respectively in Notification No. 1-L/84 dated 20th April, 1927 stand now excluded from the definition of the ‘Permanent resident of the State’ with the coming into the force of the State Constitution. It deserves to be mentioned at this stage that at the time of the original enactment of laws on State Subjects, Companies and Corporations were included in the term State Subject. It was vide order No. 98-H/39 published in the Govt. Gazette dated 20th Poh, 1986 companies were declared as ‘Class-IV State Subjects and were given the liberty to acquire any interest in land or other immovable property in the State, notwithstanding any law, rule or order to the contrary. In notification No. 1-L/84 dated 20th April 1927 the position in regard to the companies and corporations remained the same and were included in term “Class-IV State Subjects. Thereafter, by order No. 24 of 1940 which was issued under the Command of Maharaja, the Jammu & Kashmir Bank Ltd. was declared to be a State Subject. As noticed earlier, the State Subjects of Class-IV now stands excluded from the definition of permanent resident of J&K State with the coming into force of the State Constitution.
37. In the case of Jammu and Kashmir bank Vs. Lal Mohammad Bangroo, Air 1969 J&K 25, the plea of the bank was that it had been recognized as a permanent resident of the State before the commencement of the Constitution (Application to Jammu & Kashmir) order 1954 and not withstanding the absence in the Constitution of the State of a provision similar to Section 5-B of the earlier Constitution of 1996, the Status of the State Subject (permanent resident) acquired by it was saved by Section 6 of the General Clauses Act. This contention of the Bank was not accepted by the High Court. The Full Bench of the High Court opined that the position that emerges as a result of the combined reading of the provisions of Articles 5 & 6 of the Constitution of India, of the Citizenship Act and of Section 6 of the State Constitution is that the Juristic or artificial persons like companies and Corporations have not been included within the ambit of the term ‘Permanent Resident’.
38. State Subjects of Class-I are persons born and residing within the State before the advent of Dogra rule of persons who settled in the State before Samvat year 1942 and have since been permanently residing in the state. State subject of Class II are persons, who settled with in the state before Samvat year 1968 and have since permanently resided and acquired immovable property in the state. A permanent Resident of the State of Jammu and Kashmir, according to Section 6 of the State Constitution, therefore, is a person, who is a citizen of India and was a state subject of class I or class II or having lawfully acquired immovable property in the state, has been ordinarily a resident in the state for not less than ten years prior to 14th May, 1954, that is, when the constitution (Application to Jammu and Kashmir) order, 1954 came into force. Subsections (1) and (2) of Section 6 of the state constitution do not apparently make any provision for acquisition or loss of status of permanent residents by the descendants of permanent residents of the state. It is in fact, Note- II appended to notification No. 1-L/84 dated 20th April 1927 which entitles the descendants of the persons who have cleared the status of state subject of class I or class II to become state subjects of the same class. Note II gives an illustration that, for example if ‘A’ is declared a state subject of class II, his sons and grandsons will ipso facto acquire the status of the same class (II) and not class I. This qualification is only illustrative because the descendant may be male descendant or a female descendant. It may be a son or it may be a daughter. A son or a daughter born to a state subject of class I of class II shall ipso facto acquires the status of state subject of class I or of class II provided he or she is a citizen of India.
39. There is no provision in the Notification 1-L/84 dated 20th April, 1927 or in the constitution of Jammu and Kashmir that on marriage with a non permanent resident, the daughter of a permanent resident shall lose her status as a permanent resident of the state.
40. Mr. M.A Goni, learned Advocated General and Mr. Z.A Shah senior Advocated have contended that it is implicit in Note III that daughter of a permanent resident of the state marrying a non permanent resident of the state will lose her status as a permanent resident of the state to hold, inherit and acquire immovable property in the state. In order to appreciated this submission of the learned counsel, it would be expedient to once again take notice of Note III. It reads as under.
“Note-Ill , The wife or a widow of a State Subject of any Class shall acquire the Status of her husband as State Subject of the same Class as her husband as state subject of the same class as her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state”.
41. On reading of note III the question which arises for consideration is whether the wife or a widow referred to in Note III refers to a female, who is already possessing the status of a permanent resident being the descendant of the permanent resident of the state or refers to a female, who is not permanent resident of the state, but by marriage with the permanent resident of the state acquires the status of permanent resident of the state.
42. The word ‘acquire’ used in Note III is very significant. According to concise oxford Dictionary, New Seventh Edition, the word ‘acquire’ means, ‘gain by and for oneself . According to Concise Oxford Dictionary, Tenth Edition, ‘acquire’ mean’ come to possess’ and in Reader’s Digest Universal dictionary, the word ‘acquire’ means (1) to gain possession of; (2) to get especially by one’s own efforts or qualities.
43. Use of the word ‘acquire’ in Note III necessarily means a change of relationship vis-a-vis status of the permanent resident of the state, which is said to be acquired for the first time and which was not existing before. If a female, who is already a permanent resident of the state by marrying a permanent resident of the state will not acquire the status of permanent resident of the state because she already possesses the same. Note III, in my view applies only to a female, who is non permanent resident of the state and marries a permanent resident of the state. It is for this reason that Note III prescribes a condition that wife or widow of a state subject will continue to have the status of her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state. For example, if female ‘A’ is non- permanent resident of the state and marries ‘B’ the permanent resident of the state, she will acquire the status of her husband as permanent resident of the state, provided she resides in the state with the intention of residing there permanently. In case she leaves the state with the case……………………………. she will lose the status of permanent resident of the state, which she acquired by marrying a permanent resident of the state. For instance if her marriage with the permanent resident of the state is dissolved by a decree of divorce and she leave the state for good or on the death of her husband she goes back to the place of her origin with an intention to reside there permanently, then she will lose the status of permanent resident of the state, which she acquired by marrying a permanent resident of the state. I may add that since time immemorial the state has jealously guarded its subjects from the onslaught of the outsiders to come and settle in the state permanently, and therefore, the unambiguous policy of the state through out has been not to let out siders acquire any interest in the immovable property in the state in any manner. Section 4 of the J&K Land Alienation Act, 1995, Section 20-A of the Big Landed Estate Abolition Act 2007, Section 4 of the Land Grants Act, 1996, Section 95 of the J&K co-operative societies Act 1960 and Section 17 of the J&K Agrarian Reforms Act 1976, impose a complete ban on the acquisition of the immovable property by the non-permanent residents of the state. Section 12 (b) of the Jammu and Kashmir Representation of people Act makes a provision that a person shall be disqualified for registration in an electoral roll if he is not a permanent resident of the state as defined in Part III of the constitution. Section 8 (a) of the village Panchayat Act provides that a person shall be disqualified for being chosed as or for being a member of a panchayat if he is not permanent resident of the state and Rule 17 (a) of the Jammu and Kashmir Civil Services (Classification, control and Appeal) Rules 1956 provides that no person shall be eligible for appointment to any service by direct recruitment unless he is a hereditary state subject to be known hereafter as a permanent resident of the state. It is for that matter that the status of permanent resident has been conferred only on persons born and residing with in the state before the advent of Dogra Rule or persons, who settled in the state before Samvat 1942 and since been permanently residing in the state or persons, who settled with in the state before samvat 1968 and have acquired immovable property and have been residing for not less than 10 years prior to May 14, 1954 and their descendants and to none- else. The only exception made is in regard to the non permanent resident female, marrying a permanent resident of the state and that too with a condition of her making the state as her permanent abode. Therefore, I am of the considered view that Note III does not apply to a female, who is a permanent resident of the state and marries a non permanent resident of the state. The status of being permanent resident of the state, which she acquired on her birth by operation of law i.e by virtue of Note II she will continue to hold the same so long as she remains the citizens of India.
44. It deserves to be noticed at this stage that the state Legislature has the power under Section 8 of the state constitution to make any law defining the classes of person, who are, or shall be permanent residents of the state or any Bill making provision for defining or altering the definition of the classes of persons, who are, or shall be permanent residents of the state, or conferring on permanent residents any special rights or privileges or regulating or modifying any special rights or privileges enjoyed by permanent residents shall under Section 9 of the state constitution be deemed to be passed by either house of the Legislature by a majority of not less than two third of the total membership of that house.
45. No law defining the classes of person who are or shall be the permanent residents of the state has so far been enacted by the state Legislature in exercise of its power under Section 8 of the state constitution,
46. Therefore, the definition given in Section 6 of the state constitution as discussed hereinabove, stands till date un-altered. The state Legislature could if it ever desired to modify the definition and make provision respecting laws of status by a permanent resident in an event like marriage by a female state subject with a non state subject, but the state Legislature in its wisdom has not so far thought to enact such law and left Section 6 of the state constitution intact.
47. The controversy regarding the loss of a status of a permanent resident’s daughter on her marriage with a non permanent resident arose because of the Judgment in Parkash Vs Mst Shahni and others, AIR 1965 J&K 83, decided by a Division Bench of this Court. In this case, Mst Shahni who was a permanent resident of the state married one Pohu Ram of Paul Bijoyan, Tehsil Sialkot (British India) who had come as a refugee to the state in 1947. Relying on Section 10 of the British nationality & status of Aliens Act 1914, the learned Judges of the Division Bench observed that a married woman acquires the ‘domicil’ of her husband if she had not the same domicile before marriage. The division bench had not adverted to the controversy in issue with reference to Section 6 of the state constitution, read with Notification 1-L/84 dated 20-04-1927 and Notification No 13-L/1989 dated 27-06-1932. Further reading of the Judgment shows that when the respondent’s counsel sought to argue that a female acquires the status of permanent resident being the descent of a state subject and relied on Note-II of Notification dated April 20, 1927, the learned Judge repelled the contention by observing.
“In view of what has already stated that a female takes the domicile of her husband on marriage, this explanation has no application to the case of the respondent, Mst Shahni. If she had not married a person who was a resident of another place out-side the state, she could have no doubt claimed the status of her father, but on her marriage she lost her status in the state and acquired a new status of being a resident of Sialkot.”
48. The Judgment of the Division Bench is almost base on rule governing the domicile of a married woman and the law relating to Laws in England under the Act of 1914. Note III of Notification dated 20th April, 1927 was interpreted in the light of British Act. However, since then the English Law has made fundamental changes in the domicile of a husband was communicated to his wife immediately on marriage and it was necessarily and inevitably retained by her for the duration of the marriage. In Formosa Vs Formosa (1962) (3) All E.R. 419, this rule was much criticized as the “most barbarous relic of wife’s servitude” and was abolished by Section 1 of the domicile and Matrimonial Proceedings Act 1973. Now the domicile of a married woman is to be ascertained the same way as the domicile of an independent person is ascertained. Because of change in British Laws with regards to ‘domicile’ of married woman, the judgment in Mst Shahni’s case (Supta) is no longer holds the field and therefore, is hereby over-ruled.
49. In Lala Devi Pass Vs Panna lal others, AIR 1959 J&K(F.B.) the question which arose for determination related to disposal of immovable property (Other than land as defined in Jammu & Kashmir Alienation of Land Act Svt. 1995 (1938 AD) Act no. V of 1995) Situate in the State by bequest in favour of non-permanent resident of the State. The Full Bench held that a bequest of immovable property (other than land as defined in the J&K Alienation of Land Act) does not amount to transfer within the meaning of Section 5 of the J&K Transfer of Property Act in as much as the property does not pass to the donee at the time the will is executed. What was said in para 16 is reproduced below:
” 16. Disposal of immovable property by will would not amount to transfer in as much as the property does not pass as to the done at the time the will is executed. It is merely an intention expressed by the testator with respect to his property that after his death it should devolve on the donee. In my opinion therefore, there is no specific provision in law prohibiting the disposal of immovable property other than the land as defined in the Land Alienation Act by will in favour of a non State Subject and such a will cannot be held invalid. The reference is answered accordingly.”
50. From the reading of above quoted paragraph, I find that no provision of law prohibiting the disposal of immovable property (other than the land as defined in the Alienation of Land Act) was brought to the notice of the learned Judges and that led to the forming of an option that immovable property other than land can be disposed of by way of will in favour of non-permanent resident of the State. Under subsection (2) of Section 2 of the Jammu and Kashmir Alienation of Land Act, the expression ‘land’ not only means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, but also includes the sites of buildings and other structures on such land. Sub Section (3) further provides the expression ‘permanent alienation’ includes sale, gift, bequest grant of occupancy rights and exchange other than an exchange made for purpose of consolidation of holdings.
51. Section 138 Sub-section (4) of the Transfer of property Act 1977 also uses the expression ‘transfer by will’. The Jammu and Kashmir Agrarian Reforms Act 1976 also places restrictions on transfer of land, dwelling houses and structures in favour of persons, who are not permanent residents of the state. Sub-section (i) of Section 17 of the said Act reads as under:
“17. Prohibition on transfer of land – (1) Not withstanding anything contained in this Act or the rules made there-under or any other law for the time being in force, but subject to the provisions of sub-sections (2) and (3), no land or dwelling house or structure shall, except as provided under Section 140 of the Jammu and Kashmir Transfer of property Act, Samvat 1977, Section 4-A of the Jammu and Kashmir Alienation of Land Act, Samvat 1995 and Section 69-B of the Jammu and Kashmir Cooperative societies Act, 1960, be transferred disposed of or vested under this Act, or in execution of any decree or order of Civil Court or Revenue Authority or under any other law in favour of any person who is not a permanent resident of the state”.
52. A bare perusal of statutory provision noticed above indicates that the immovable property, may be building or other structure, cannot be transferred by bequest in favour of a person, who is not a permanent resident of the state. Since the relevant provisions of the Laws prohibiting transfer of immovable property in favour of non permanent residents of the state were not brought to the notice of the learned Judges and with the enactment of the Jammu and Kashmir Agrarian Reforms Act 1976, which completely prohibits transfer of dwelling houses and structures in favour of persons, who are not permanent residents of the state the decision of the full Bench in Devi Dass’s case (Supra) is not binding being per in curiam.
53. Another decision which may be adverted to is a decision given by the Division Bench of this Court in case Sved Hakim Ali Shah Vs Nawab Bibi and another, 1937 (39) P.L.R J&K 61. In this case there were two brothers by the names of Azim Shah and Fazal Shah. Azim Shah died leaving two widows, namely, Nawab Bibi and Mehar Bibi. Nawab Bibi had a daughter by the name of Ghulam Kubra on 20th Phagun 1986 Mst Nawab Bibi executed a Deed of gift in favour of her daughter Ghulam Kubra by which all the property of Azim shah which was in her possession was transferred in favour of Ghulam Kubra. Fazal Shah’s sons instituted a suit for declaration that the gift as made by Mst Nawab Bibi in favour of Mst Ghulam Kubra was invalid and would not, therefore, affect their reversionary rights in the property of Azim Shah on the death of Azim Shah’s widow Nawab Bibi and Mehar Bibi. The suit was dismissed by the trial Court. An appeal was taken to the District Judge and the same came to be dismissed. Civil second Appeal was taken to the High Court. The point raised was that although Ghulam Kubra was a state subject by birth but she lost that status by marrying a non state subject and as such, the transfer of immovable property made by gift was not valid. It was observed that as Mst Ghulam Kubra was admittedly a legal heir of her father and as such, she was entitled to get her rights irrespective of other considerations.
54. It appears that the learned Judges were of the view that even if the gift is declared invalid Mst Ghulam Kubra would have still inherited the property of her father. In my considered opinion the impression gathered by the learned Judges was not wrong because ‘inheritance’ does not constitute ‘transfer’ under law. It is by operation of law that a person inherits the property. The devolution of the property does not depend upon the status of a person. He may be a permanent resident of the state or may not be. Under Section 4 of the Sri Pratap Consolidation of Laws Act, in the matter of inheritance of properties, personal Laws have been made applicable Clause (d) of Sub-section (1) of Section 4 of the Sri Pratap J&K Laws consolidation Act 1977, provides that in questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardry, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution the rule of decision is and shall be the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindu Law in cases where the parties are Hindus, except in so far as such law has been by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority”.
Under the Islamic law the property devolves according to certain principles of inheritance and those principles do not recognize Citizenship or permanent residency as the basis of inheritance of the property. Like-wise under Hindu Laws the property devolves in accordance with the provisions of the Hindu Succession Act and this Act too does not recognize Citizenship or permanent residency for the purpose of ‘inheritance of the property’. There is no legislative enactment providing that in the matter of ‘inheritance of property’ it is necessary for the person claiming interest to be ‘permanent resident’ of the state. The law relating to permanent residents in my opinion has no application to the property acquired as a result of inheritance. The only prohibition is that the property inherited by a non-permanent resident of the state cannot be sold to any person other than the permanent resident of the state.
55. Learned counsel for the parties also addressed arguments regarding the adoption and right of the adopted child to acquire the property in the state Mr. M.A Goni, learned Advocate general and Mr. Z.A Shah learned counsel for the interveners contended that the adoption of a non permanent resident child cannot be recognized as a mode to acquire the property in the state and in this regard reliance has been placed on the Division Bench judgment in the case State of J&K Vs Vijay Manchanda and another LPA (W) No. 70/1987 decided on 21-11-1988. On the other hand Mr. Pramod Kohli senior Advocate contended that the Division Bench in the case of Vijay Manchanda (Supra ) does not lay down correct law and needs re-consideration. Since the question regarding adoption and right of the adopted child to acquire property in the state has not been referred to for consideration of the full Bench, I do not propose to opine on the correctness or otherwise of the Division Bench Judgment in Vijay Manchanda’s case.
56. In the ultimate analysis, my answer is in negative to the question referred to the Full Bench for its consideration. Accordingly, I hold that the daughter of a permanent resident of the state of Jammu and Kashmir will not lose status as a permanent resident of the state of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the state of Jammu and Kashmir. Reference is accordingly answered.
57. I have gone through the elaborate and lucid opinion expressed by my Lord V.K. Jhanji, J.I entirely concur with the reasoning and conclusions arrived at. However, taking into consideration the fact that the issue involved is of public importance, I have chosen to add a few paragraphs.
58. The pivotal question is visa-vis status of a female who is a state subject and gets married to a person who is not a permanent resident of the state of Jammu and Kashmir, or a married woman or a widow who decides to have her permanent residence outside the state of Jammu and Kashmir. The argument put across by the State is that such a married woman on marriage to a non permanent resident would loose her status as a State subject. It is again urged that a wife or a widow if wants to continue to enjoy her status as a state subject, then she must continue to reside in the State of Jammu and Kashmir and if she decides to leave the state of permanent residence outside the stage, then she would loose that status.
59. In a state which had seen progressive rulers and who were conscious to protect the rights of their subjects, can it be said that the intention up in the State of the status if she leaves the state for permanent residence outside the State? No doubt, in the so-called enlightened western society a married woman had no legal existence apart- from her husband as Black stone in his commentaries P. 441 tells us that “by marriage, husband and wife are one person in life i.e the very being or legal existence of a woman is suspended during the marriage or at least is incorporated and consolidated into that of the husband”. The result at common law in England was merger of a wife’s legal status in that of her husband. Marriage was an assignment of her property rights to her husband at any rate this was so during coverture. Much of her property, whether possessed by her at or coming to her after her marriage, either became absolutely his own, or during coverture might, if he chose, be made absolutely his own , so that even if his wife survived him it went to his representatives”; At common law, she suffered from disabilities and even these disabilities, as per Blackstone P 445, “were intended for her protection and benefit”. In Equity, the Court of Chancery was engaged for centuries in protecting her property rights. It was on account of the effort of John Mill between 1860 and 1870 who enjoyed a position of influence that he was able to influence the society and public opinion to get legislations enacted with a view to protect the property of a married woman. Married women’s property Act of 1870 was a first step in this regard. Other legislations in 1882 and 1893 were also meant to protect the rights of the women.
60. So far as ancient Indian society is concerned, in Kautilya’s Arthashastra by L.N Rangarajan penguin Edition, the question posed is “did women of Kautilya’s time enjoyed more rights than today?” It is answered by saying-” there can be no clear answer to this question because in some respects, like remarriage or right to property, women had a better position that what they came to have in the subsequent periods..” The fact, however, remains that Indian women in ancient times enjoyed and even at present enjoy a position of status and prominence in the social set up and religious functions are not complete in their absence. If this be the state of affair, can it be said that the notification issued on 20th April, 1927, was meant to have such a drastic effect as is projected to by the state? Again, when the constitution of state of Jammu and Kashmir was enforced, the state constituent Assembly was keen to protect its state subjects. If the clear intendment of the provision is so, then there is no option to go with the view projected by the state. It is the said argument of the state which has been negatived by my learned Brother and as indicated above, I entirely concur with him.
Note III which is required to be interpreted is to following effect :-
“The wife or a widow of a state subject of any class shall acquire the status of her husband as state subject of the same class as her husband so long as she resides in the state and does not leave the state for permanent residence outside the state.”
61. Let the above clause be analysed: it deals with:
i). Wife of a state subject;
ii) Widow of a state subject;
iii) Wife or widow referred to : in Note III is to acquire status of her husband as state subject and this status is of the same class as her bus band;
iv) The wife or widow so long as she resides in the state and does not leave the state for a permanent residence outside the state would continue to enjoy the status of state subject.
62. If note III is read as it is, then it becomes apparent that it does not deal with a female state subject who continues to stay in the state but marries a non-state subject. It also does not deal with a female state subject marrying a non state subject and leaving the state for permanent residence outside the state. It deals only with the wife or widow of a state subject and not with the wife or widow of a non state subject. This aspect of the matter would be elaborated again.
63. In the state of Jammu and Kashmir, as projected by the Advocate General, a citizen possesses dual rights; one is citizenship of India; and the other is the status of a state subject or permanent resident. The later status is peculiar to the state of Jammu and Kashmir. This status, if a female (married or widow) wants to continue to enjoy, then she should have her domicile in the state. This right is dependant and is linked with her domicile in the state. The argument put across is that if the wife or a widow changes her residence, then she would loose her domicile in the state and as domicile and state subject status has been put at par, she would loose that status also.
64. At this stage, the concept of citizenship and domicile be noticed.
Citizens are the members of the political community to which they belong. They are the people who compose the community and who, in their associated capacity, have established and submitted themselves to the dominance of the Government for the promotion of general welfare and protection of the individuals as well as their collective rights. The nationals of a state are thus persons natural or artificial, which it has a right to protect abroad. With respect to those putting up abroad, it has a right to legislate and is deemed under a duty to receive citizens if a foreign state desires to deport them. This concept end not be elaborated further. Once a person is a citizen of India, then he continues to be so unless it is terminated by applying the provisions of Citizenship Act of 1955. In state Trading Corporation V. Commercial Tax Officers, AIR 1963 SC 1811 (1819), the Supreme Court of India explained the distinction between “nationality” and “citizenship”. It was observed that “nationality” has reference to the jural relationship which may arise for consideration under international law. On the other hand “Citizenship” has reference to the jural relationship under municipal law. In other words, nationality determines the civil rights of a person, natural or artificial particularly with reference to international law, whereas citizenship is intimately connected with civic rights under municipal law. Hence, all citizens are nationals of a particular state, but all nationals may not be citizens of the state. In other words, citizens are those persons who have full political rights and are still domiciled in that country”.
65. This concept be elaborated. One of the indispensable qualification for determining a person, if he is a citizen of India is that the person in question must have domicile in India. “Domicile” is only an essential qualification for Indian Citizenship but “domicile” and “citizenship” are not one and the same concept. The term domicile is very difficult of definition and no completely satisfactory definition seems to have as yet been formulated. Dicey in his “conflict of Laws” define ‘domicile’ as follows :
“The domicile of any person is in general the place of country which is infact, his permanent home but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home by a rule of law.”
66. Wharton points out in his “Law Lexicon”, two things must concur to constitute domicile, first residence and secondly, the intention of a person in question to make it his home. In this connection, the following observations of Lord Mac Naghten in Winanns Vs Attorney General (1904) 1904 App Cas 287 (290) – 73 L.J. (kb) 613, be quoted:
“Residence and domicile” as Lord Westbury points out are two perfectly distinct things ….. Although residence may be some small prima facie proof of domicile, it is by no means to be inferred from the fact of residence that the domicile results even although you do not find the party had any other residence in existence or in contemplation. Lord Chelmsford’s opinion in Udny Vs Udny (1869) L.R. 1 H.L. Sc 441 (455) is that in a competition between a domicile of origin and an alleged subsequently acquired domicile there may be circumstance to show that however long a residence may have continued, no intention of acquiring a domicile may have existed of any one moment during the whole of the continuance of such residence. The question in such a case is not whether there is evidence of an intention to retain the domicile of origin, but whether it is proved that there was an intention to acquire another domicile”.
67. Thus the residence requisite as an element of domicile need not to be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. Domicile is not always a matter of voluntary choice, but is sometimes involuntary as domicile may be ascribed by law or may result by operation of law, as result for instance, in the case of a minor who acquires the domicile of his father. Every person at birth inherits the domicile of his father which becomes his domicile of birth or domicile of origin which continues until he acquires a new domicile which is known as domicile of choice. A minor during his minority has no legal capacity to acquire a domicile different from that of the guardian and cannot in law migrate. AIR 1954 all 456, Mst Allah Bandi Vs Govt. of Union of India, is a case which related to minor married girls who were living with there parents and had left for Pakistan with their parents during the disturbances of 1947, while the husbands continued to live in India. It was held that under the circumstances they could not be said to have “migrated” to Pakistan so as to lose their Indian domicile and Indian Citizenship. The decision proceeds on the ground that as the girls were minors the requisite volition and intention to constitute migration could not be attributed to them as the same could be exercised on their behalf only through their legal guardians, their husbands. Thus, citizenship is the status of being a citizen; membership in apolitical society; membership in the political civil community of the state; the relation of allegiance and protection between individuals and their country. The term carries with it or implies membership of a nation, the idea of connection or identification with the state and a participation in its functions . In corpus Juris Secundum Vol.14 at page 432, it has been observed that the concept “implies much more than residence, and ‘residence’ and the ‘citizenship’ are not synonymous, nor does one include the other”. It has further been observed,”……… In this connection, it has been pointed out citizenship is a status or condition and is the result of both act and intent and that a person may reside in one State and be a citizen of another.” As to how citizenship can be acquired is a subject which has been dealt with in the constitution of India and also under the citizenship Act of 1955. The American Law Visualises dual nationality and a person with dual citizenship may not lose his American Citizenship even by asserting the rights or assailing the liabilities of citizenship in another country. Again under the American System the concept of a person being a citizen of united States and of a particular State is in existence. A person is generally a citizen of both the United States and of a particular state subject to the Jurisdiction thereof is entitled to protection from the two Governments each within the Jurisdiction of the United state.
68. So far as the state of Jammu and Kashmir is concerned, the concept of a person being a state subject or a permanent resident is there. As in the case of citizenship, status of a state subject is not dependant on domicile though it may be of some consequence as are inherent in the concept of the citizenship. This dealt with in part III of the constitution of Jammu and Kashmir. This aspect of the matter has been elaborated with a view of demonstrate that the state subject is a person who fell with in clause I, II and III of the Notification dated 20th April 1927 and also their descendants. This not dependent on domicile . Thus a person born in the state of Jammu and Kashmir whose descendants fell within clauses I, II, and III are to be treated as State Subjects. This status, they inherit on account of they having been born with in the state of Jammu and Kashmir. The question would arise as to whether a person born with certain privileges can be deprived of the same and if he is to be deprived can it be done by a process of interpretation and by the extending the provision when there is no specific provision dealing with depriving that person of that status.
69. The notification referred to above, deals with conferring of a status . The only clause which refers and which may lead to a person losing that status is contained in Note III. This Note III, as indicated above, deals within the wife or widow who never had this status but acquired the same by entering into a matrimonial alliance with a person who is a state subject. It is with regard to this category, a provision has been made. It has been provided that what she had acquired by marriage would continue to be possessed by her if during the substance of marriage she continues to stay in the state and if becomes a widow, even then, she would continue to enjoy that status in the state, but if during the subsistence of marriage, the wife leaves the state of permanent resident outside the state. She would lose her status Same would be the position vis- a-vis widow. This note, as indicated above, does not deal with a female state subject continuing in the state or leaving the state of Jammu and Kashmir. There is no dispute regarding this. So far as an unmarried woman is concerned, she is as free as a male. She can leave the state in the same manner as a male can do. But the question arises, would she suffer from disqualification continued in Note III if she leaves the state for permanent residence outside the state. A male does not so lose. The argument put across by the state is that the female would lose her status of a state subject. This note does not deal with such a situation. As a matter of fact, it does not deal with a female state subject born in the state marrying a non state subject and continuing to stay in the state; it also does not deal with a female descendant who is a state subject and marries a non state Subject and leaves the state. As a matter of fact, the argument put across by the state is that the moment of a female marries a non state subject, she would lose her status. Such is not the wording use in Note III, and if this meaning is to be attributed, then the words would have to be added to Note III i.e. Note III would have to contain a recital to the effect that the female descendent of the state subject marrying a non state subject or non permanent resident would lose her status as the state subject. When this is missing in Note III, then can it be said that the progressive rulers who were conscious to protect the rights of the state subjects wanted to deprive only a female state subject and protect only male state subjects. If somebody is to be deprived of her status, then there has to be clear intendment and that should be visible from the plain reading of the statute, which as indicated above, is missing in this case.
70 The above conclusion is reinforced when the wordings of Note III are given to close look. It uses the expression ‘wife or a widow of a state subject of any class shall acquire the status of her husband as the state subject of the same class” as her husband…..” As to what would be meant by the term ‘acquire’ signifies the obtaining of something as the result of positive act done by the acquire and would obviously not apply to a case where on account of death, the right devolves on the heirs of the deceased. This word would mean to gain obtain or get as one’s own by own’s own by one’s own exertion; gained in contra distinction to innate or inherit it. This meaning was given to the word ‘acquire’ by Division Bench of Tranvancore High Court. Cochin in AIR 1953 Tra Co. 397. The argument that word; acquired’ signifies the obtaining of title as a result of a positive act done by the acquires, commended to their Lordship of the division Bench. Murray’s (An Ew English Dictionary) was referred to. What is said is being quoted;
“…… The meaning given in Murray’s “A New English Dictionary” for the word “acquired” is, to gain, obtained, or get as one’s own, to gain the ownership of (by one’s own exertion or qualities) and for the word “acquired” , is gained or obtained by one’s own exertion gained in contra distinction to ‘innate’ or ‘inherited’…….”
71. The Dictionary meaning suggest that the term ‘to acquire’ would mean to gain or to get as one’s own (by one’s own exertion or qualities). “Reader’s Digest Universal Dictionary 1998 Ed Page 24 gives the meaning of terms as ‘To get, especially by one’s own effort. “Referrence be made to a decision reported as Starey V. Graham, (1899) 1 QB 406. The relevant observation is quoted below;
“The answer to that seems to me to be that “right acquired’ means some specific right which is one way or another has been acquired by an individual and which some persons have got and others have not got….”.
72. Thus, when ever a right is acquired, it postulates existence of “a pre-exiting right” and the change as a result of acquisition means getting a right for the first time. This meaning was given by the Bombay High Court to the word ‘acquire’ in the case reported as AIR 1968 Bombay 308, Udhav Shankar Gangawane and others Vs Tarbai. It was observed that the word ‘acquire’ would means “acquisition for the first time”. Where a person has already by reason of law, or otherwise, possessed of a right, then the question of acquiring it would not arise.
73. In the light of the dictionary meaning of the word ‘acquire’ and the judicial pronouncements noticed above, the words ‘shall acquire the status’ would refer to a situation where the wife was not a possessed of a status for e.g. who” comes outside the State of Jammu and Kashmir and marries a state subject and acquire it for the first time. When she acquire such a status, then she has to enjoy that status in term of the conditions under it has been granted. A female descendent of the state subject does not acquire the status but inherit it. Therefore, the question of her acquiring the status for the first time on marriage would not arise. Note III shall not be applicable to a female who has already a status of state subject she possess this status on account of her birth in the state and she has inherited it from those who possessed this status . Therefore, the question of her losing the status by operation of Note III would not arise.
74. OWP 152/85 preferred by Dr Rubeena Nasurallah is a case where a female state subject has entered into a matrimonial alliance with a person who is not a state subject. In this case, the argument put across by the state is that the status of writ petitioner would go along with her husband. For talking this stand, assistance is sought not from the notification in question but on the broad principles of International Law. It is submitted that woman citizenship depends upon the citizenship of her husband and the original citizenship of a girl on marriage ceases to exit unless is retained in accordance with the special procedure provided under law. Such is the stand taken b.y the state in the supplementary affidavit filed by the respondent No 1 in the above writ petition. This was filed on 20th May 87. Reference is then made to English Statute Law on Nationality. It is on this basis submitted that the rule “is firmly founded and accepted in the International Law”, that is a girl on marriage with a non permanent resident loses permanent residentship of the state and also become in- eligible to hold and acquire immovable property in the state.
75. Dr. Rubeena Nasarullah is a case where her husband has taken residence in the state of Jammu and Kashmir and in any case, the petitioner has not exhibited any intention to leave the state. She has continued to reside in the state of Jammu and Kashmir, and therefore, on the bases of logic put across in the supplementary affidavit, the conclusion which is ultimately sought to be drawn cannot be so drawn. As a matter of fact, when the state speaks of international law, it cannot ignore the convention on the Nationality of Married Woman. This was placed before the General Assembly for ratification on 29th Jan’ 57 Articles 1 and 2 are relevant and are being reproduced below:
“1. Each contracting State agrees that neither of the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.
2. Each contracting State agrees that neither the voluntary acquisition of the nationality of another state nor the renunciation of its nationals by one of its nationals shall prevent the retention of its nationality by the wife of such national.”
76. Therefore if shelter is to be taken only behind the International law, then the convention on the Nationality of Married Woman which stands ratified by the General Assembly Resolution 1040 (XI) cannot be ignored. As noticed above, the right which stands inherited can be taken away only by a process of law. Note III does not deal with such a situation, and therefore, it cannot be made applicable to a female state subject marrying a non state subject.
Reference be made to yet another notification issued by His Highness the Maharaja Bahadur, Srinagar, dated 27th June, 1932. The preamble and para 1 of this notification is to the following effect:
“1. That all emigrants from the Jammu and Kashmir State to foreign territories shall be considered State Subject and also the descendants of these emigrants born abroad for two generations;
77. Provided that, these nationals of the Jammu and Kashmir State shall not be entitled to claim the internal rights granted to subjects of this state by the laws, unless they fulfill the conditions laid down by those laws and rules for the specific purposes mentioned therein”.
78. The term ’emigrant’ would include both male and female. The rights of a female emigrant have been protected to the same extent as that of a male emigrant; their heirs are also protected to the same extent. Even the above notification does not display and intention that a female emigrant has necessarily to marry a state subject.
79. An argument was sought to be put across that if the intention of Note III is to deprive a female of her status of state subject and not to deprive a male of this status, then this would be violative of right of equality as enshrined in Article 14 of the constitution of India. The state however, urged that if this interpretation is placed, then this would affect the special status as protected by Article 35-A of the constitution of India. It is accordingly submitted that an immunity attaches and a declaration cannot be given that the laws dealing with the permanent residents are ultravires.
80. The contention of the petitioners is that a perusal of Article 35-A of the constitution of India, which protects the laws pertaining to permanent Residents gives a protection to the effect that any existing law in force in the state of Jammu and Kashmir and any law hereafter enacted by the Legislature of the state shall not be declared void on the ground that it is inconsistent with or takes away or abridges any rights conferred on other citizens of India by any provision of Part III of the constitution of India. The protection conferred by this Article is to safe-guard the possibility that a citizen of India, who is not a permanent resident may not be able to urge that the treatment which is being given to a citizen of India, who is a permanent resident of State of Jammu and Kashmir is different. It was this aspect of the matter, which it is urged is sought to be protected. This provision cannot be taken to mean that inter se inequality between the State Subjects is also immune from attack merely because they happen to be permanent State Subjects or that the matter regarding which this is done, is covered by Article 35-A. Section 10 of the State Constitution lays down that permanent resident have all the rights guaranteed to them under the constitution of India, and if there is some discrimination inter-se between the citizens of India who are permanent residents of the state, then in the event of a case being made out for discrimination, that provision can be struck down as violative of equality clause. The immunity which has been provided is limited. The immunity is that law is not to be declared as ultravires because different treatment is being given to citizens of India who are not the state subjects or permanent residents and the citizens of India who are permanent residents of the state.
81. It is not necessary to dilate upon the above arguments as in view of the interpretation given to Note III, the alleged discrimination ceases to exist. A female state subject has to be treated at par with a male state subject, and therefore, the question of attracting the vice of discrimination would not arise. I am accordingly of the view;
i) That Note III, noticed above, does not deal with the rights of a female state subject marrying a non- state subject, and therefore, her losing this status on account of note III would not arise;
ii) That Note III deals with a wife who acquires for the first time, the status of state subject and this status which she acquires is the same which is enjoyed by her husband. Such wife, if she becomes a widow and who has acquired the status, would lose the same if she moves out of the state for permanent residence outside the state; A female who comes from a state other than the state of Jammu and Kashmir can be cited by way of illustration.
iii) That the word ‘acquire’ would mean acquiring something for the first time. What is inherited is never acquired. It cannot be lost unless a positive disqualification is mentioned in the statute in question. No such positive disqualification can be spelled out from Note III
(iv) That the question as to whether Note III suffers from discrimination becomes an academic issue in view of the interpretation placed on Note III
(v) That the concept of domicile has nothing to do with the concept of citizenship and the concept of state subject. Domicile has something to do with the residence but residence and citizenship are not synonymous. State subject status is nearer to the concept of citizenship and one can lose this status in the same manner as in the case of citizenship.
82. As indicated in the beginning, I am in entire agreement with the reasoning and the ultimate conclusions arrived at by my Lord V.K Jhanji, J. The above paragraphs have been added in concurrence of the option expressed by my learned brother.
Muzaffar Jan, J.
1. I have gone through the judgment of my brother, Jhanji, J. However, I would like to add my views.
2. The Jammu and Kashmir is the only state in India which has a separate constitution. Not only that two constitutions govern the state, one constitution is the state’s own constitution adopted by the constituent Assembly on 17-11-1956 (hereinafter called the ‘state constitution’) and the second is the constitution of India which applies to the state with such ‘exceptions’ and ‘modifications’ and from such date, as the President of India may promulgate under and in accordance with Article 370 of the constitution of India (hereinafter called the ‘Indian Constitution’).
3. The constitution of India became fully operational on January 26, 1950. At that time state (Jammu and Kashmir) was governed by “The Jammu and Kashmir constitution Act, 1939” (Act No. XIV of samvat 1966), which was promulgated by then Maharaja Bahadur on September 7, 1939.
4. After the constitution of India became fully operational the President of India issued constitution (Application to Jammu and Kashmir) order, 1950 in consultation with the Government of Jammu and Kashmir and specified the matter with respect to which the Union Parliament could enact law for the state. This was followed by an agreement between the representatives of the state Government and Indian Government, Known as “Delhi Agreement, 1952”. Among its several features, one of the main feature of the Agreement between the two Governments was that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the state, shall be regarded as a citizen of India and that the state Legislature will hold power to make laws for conferring special rights and privileges on the ‘state subjects’ under “State subject Notification of 1927 and 1932”. The arrangement between the two Governments was adopted by Jammu and Kashmir constituent Assembly on a motion of approach on August 21, 1952. The Union Parliament also accepted the said arrangement on August 7,1952.
5. On these constitutional developments and formation of National Interim Government in the state on March 5 1948, ‘The Jammu and Kashmir constitution Act, 1939’ was subjects to amendments. The amendments carried out where,” The Jammu and Kashmir constitution (Amendment) Act, 2008 (1951 A.D)”, “The Jammu and Kashmir constitution (Amendment) Act, 2009 (A.D 1952) and the “Jammu and Kashmir constitution (Amendment )Act, 2011 (A.D 1954)”
In terms of the Amendment Act of 2009, no person who was not a state subject of class I was eligible for elections to the office of the ‘Sadar-i-Rayasaf The constitution Act, 1939 with various amendments served as the Interim constitution’ of the state pending enactment of a New Constitution by the state constituent Assembly.
6. After the “Delhi Agreement” the President of India promulgated another order called “Constitution (Application to Jammu and Kashmir) order , 1954 (C.O 48 dated 14-5-1954). With the promulgation of the said order, The Constitution (Application to Jammu and Kashmir) Order, 1950, which was the first order made on January 26, 1950 (C.O 10 dated 26-1-1950) was superseded, by the Constitution (Application to Jammu and Kashmir) Order, 1954. The Constitution Application order of 1954 has over the year undergone several amendments made from time to time by the President.
7. That with the adoption of Constitution by the State’s Constituent Assembly on 17-11-1956, the Jammu and Kashmir constitution Act, 1939 was repealed subject to Section 157 of the state constitution. At the time the state constitution was adopted, constitution (Application to Jammu and Kashmir) order 1954 was already in operation subject to amendments carried out till that date. Therefore, as on 17-11-1956 the state came to be governed by the constitution called “Constitution of Jammu and Kashmir”. On that date only sections, 2,3,4,5,6,7,8 and 158 came into force and the remaining provisions of the state constitution came into force on 26-1-1957. The state also came to be governed by the constitution (Application to Jammu and Kashmir) order, 1954 promulgated by the president of India under Article 370.
8. So far as the position of ‘Permanent residents’ their status, rights and privileges, are concerned, we notice that way back in 1927 when even Jammu and Kashmir constitution Act, 1939had not been promulgated, the term came to be defined with rights and privileges conferred on them. The then Maharaja sanctioned Notification No. 1-L/84 on April 20, 1927. Initially the said notification (hereinafter called state subject Notification of 1927), defined the term ‘State subject’ in terms of Class I, II and III. It also contained Note I and II only when it was originally sanctioned. Subsequently Note- III was added vide Notification No 51-L/89 as amended by Notification No. 6-L/ 1990 published in Government Gazette dated 8th Baisakh, 1990 and Govt. Gazatte dated 23rd Bhadun 1990 respectively. Class IV and Note IV came to be added in the said Notification vide order No.98-H/39 published in Government Gazette dated 27th Poh, 1996. The said Notification was followed by another Notification sanctioned by Maharaja on June, 27, 1932, Published in Government Gazette dated 24th Har, 1989 under No. 13-L/1989. Both these Notifications are a part of Section 6 of the state constitution.
9. That Part II of the Indian constitution define citizenship and relates to the matters relating there Article 7 in its application to the State adds follow proviso:
“Provided further that nothing in this Article shall apply to a permanent resident of the state of Jammu and Kashmir, who after having so migrated to the territory now included in Pakistan returns to the territory of that state under permit for resettlement in that state or permanent return arrangement by or under the authority of any law made by the Legislature of that state, and every such person shall be to be a citizen of India.”
10. As regards Article class (3) it provides that in class (3) of the Article 16 the reference to the state shall be constructed as not including a reference to the state of Jammu and Kashmir. 11. After Article 35 of the ‘Indian Constitution a new Article has been added and applied to the state of Jammu and Kashmir, being Article 35-A. The said Article provides as under:-
“35-A saving of laws with respect to permanent residents and their rights notwithstanding anything contained in this constitution, no existing law in force in the state of Jammu and Kashmir, and no law hereinafter enacted by the Legislature of the state.
a) Defining the classes of persons who are, or shall be permanent residents of the state of Jammu and Kashmir, or
b) Conferring on such Permanent residents any special rights and privileges or imposing upon other person any restrictions as respects;
(i)Employment under the state Govt.
(ii)Acquisition of immovable property in the state;
(iii)Settlement in the state; or (iv)Right to scholarships and such other forms of the aid as the state Government may provide.
Shall be void on the ground that it is in consistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
12. It appears to us that when the constitution Application to Jammu and Kashmir) order, 1950 was promulgated, part II of the constitution of India, dealing with citizenship was not made applicable to the state. Entry 17 of the Union List applied with ‘modification’ excluding the field of legislation in respect of ‘Citizenship’ by Parliament. The people of the state, in matter of citizenship, therefore, were not subject to the laws made by the parliament. Under the ‘Delhi Agreement of 1952, it was agreed between the two government that the right of the ‘permanent residents’ of the state would be protected but at the same time citizenship of India should not be denied to them. The constitution Application order of 1954 applied Part II of the constitution to the state but with modifications’ and with new Article, under Article 35-A Under Article 370, President of India can extend the provisions of the constitution of India with ‘exceptions’ and ‘modification’. Neither ‘Instrument of Accession’ nor the constitution Application order of 1950′ ‘Delhi Agreement’ or the constitution Application order of 1954′ brought any change in the status, right and privileges of the permanent residents of the state.
13. That the Notification of 1927 and 1932 were protected under the constitution Act, 1939. After the constitution Application order of 1954, which protected the status, rights and privileges of the permanent residents, constitution Act, 1939 came to be amended and Section 5-A-5-F came to be incorporated. These provisions, apart from protecting the said two notification, also provided that state Legislature will have the power to regu: late special rights and privileges of the permanent residents of the state. They also provided that state Legislature could make laws with respect to the rights, privileges such time laws are made in that behalf, the existing ‘Izazatnama Rules shall continue to remain in force. Finally when the state adopted its own constitution, we notice that a separate part, being part HI, came to be enacted exclusively relating to the permanent residents, and the power of the legislature relating thereto. Section 6 of the state constitution incorporates the Notification of 1927 and 1932 to the extent indicated therein. Section 6 to 10 of the state constitution is the part of the constitution as originally enacted and adopted by the constituent Assembly. These provisions are not the outcome of any amendment carried out subsequently. Having regard to the aforesaid position, I am of the opinion that the two Notifications being state Notifications No 1-L/84 dated 27th April, 1927 and state Notification 13-L dated 27-6-1932 are part of the state constitution as originally enacted and, therefore immuned from challenge.
14. It has been urged that Note III of the 1927 Notification is ultra vires the constitution offending fundamental rights because it discriminates woman on basis of sex. I am unable to persuade myself to accept that argument.
15. Having regard to the provisions contained in part III of the state constitution, the two Notification are a part of the state constitution by virtue of Section 6 and the ‘doctrine of incorporation’ section (1) (a) mentions state subjects of class I or class II. These correspond to class I and class II of 1927. Notifications Section 6 (1)’ (b) also declared a person to be permanent resident of the state, if on 14-5-1954 such person had already acquired immovable property, lawfully, in the state and had been ordinarily residing in the state for not less than 10 year prior to that date, meaning there by prior to 14-5-1954. Class III of 1927 Notification contemplates partly same position and partly different position since it was sanctioned in April, 1927. On account of differences in the point of time, when Section 6 of the constitution was adopted (17-11-1956) and when the 1927 Notification was issued (20-4-1927), it appears that Section 6 (1) (b) recognizes partly the position, in so far as lawful acquisition of immovable property is concerned , it obviously includes acquisition under a Riyatnama, but it excludes acquisition of the property under a Ijazatnama and or under Riyatnama after 10 years continuous residence in the state. In my opinion Section 6 has frozen the position with regard to the status of a person claiming to be permanent resident. The state constitution makes no provision for acquisition of ‘permanent residency’. To that extent the said notification is not protected under the constitution. Similarly there is no protection to the companies as originally provided in class IV of the Notification.
16. So far as the Notes are concerned, Note I provides for the right and privileges of various classes of state subject. Since Section 6 (1) (b) partly protects class III permanent residents, therefore, these rights and privileges are restricted to class I class II and partly class II permanent residents. Further Section 6 in terms provides for the conditions, which on satisfaction, entitle a person to be declared to hold status as a permanent resident of the state. The distinction between various classes, as was originally envisaged by 1927 Notification, has been made inconsequential. Note II similarly declares descendants of the permanent residents also as permanent residents. As already observed, since Section 6 of the state constitution makes no distinction amongst the classes, the distinctions are held to be in-consequential for purpose of Note II as well.
17. It is Note III which became come issue during hearing of these petitions. According to the learned counsel appearing for the petitioners Note III is ultra vires the constitution not only on ground of discrimination based on sex, but also its protection by the state constitution is contrary to basis structure of the constitution. The other counsel opposing the submissions, contended that Note III is immuned from challenge and it could not be declared as ultra vires the constitution on any ground whatsoever.
18. In terms of Note III the wife or a widow of a state subject acquires the same status as of here husband , so long as she resides in the state and does not leave the state for permanent residence outside the state. The said provision has also been considered by a Division Bench of this court in a case titled Prakash Vs Sahini, reported in AIR 1965 J&K 83. The correctness of the view taken in the said decision has also been challenged.
19. I have all ready held that the two Notifications are apart of Section 6 of the state constitution , as originally enacted, and therefore, are protected and immuned from challenge. The argument that Note III discriminates women on basis of their gender cannot be accepted.
20. A provision can be declared ……………….. by a competent court only under Article 13 of the constitution of India. There is no difficulty with regard to legislative enactments, ordinances, order bye- laws etc. Which qualify ‘as law’ within the meaning of said Article. At one stage amendments carried out in the constitution were declared to be ‘law’ within the meaning of Article 13 and on that premises could be declared as void if the that premises could be declared avoid if the Constitutional amendment contravened fundamental rights (see Golak Nath Vs State of Punjab, AIR 1967 SC 1643). It needs to be noticed that the supreme Court considered the question with regard to an amendment is a law within the meaning of Article 13 or not. note III as contained in 1927 Notification is not the out come of any amendment carried out in the State Constitution. As already observed Section 6 is a part of the original constitution and so are the two Notifications. In my opinion, provisions of a constitution, which exists in the constitution from its inception cannot be declared ultra vires the constitution. The plea of ultra vires is not available against the provisions of the constitution originally enacted.
21. Note III is based on the ………………………… in private International Law. This view is taken by the Division Bench of this court in the judgment noticed above. It is only the Legislature which can redefine ‘permanent resident’ and or their rights and privileges. In fact Section 8 of the state Constitution makes a specific provision with regard to it. Nothing has been shown to us that the state Legislature has made any provision under Section 8 of the state Constitution. That being so, Note III as it is, will continue to remain in operation till such time appropriate legislation is enacted in accordance with Section 8 & 9 of the state constitution. It is also urged that if Note III is a part of Section 6 of the state constitution, it is contrary to the basis structure of the Constitution. The argument is misconceived. Firstly, it needs to be appreciated, against which constitution validity of a law can be challenged. I have already observed that there are two constitutions which are operative in this state. The state constitution is not a subordinate legislation. So far as the rights of a permanent residents are concerned, Section 10 of the state constitution provides that the permanent resident of the state shall have all right guaranteed to them under the constitution of India. It would mean that in addition to the rights available to the permanent residents of the state to challenge the provisions of the state constitution, It is claimed that Note III is discriminatory, therefore, offends Article 14 of the constitution. The argument is misconceived. Article 14 it is settled law, is a general provisions and has to be read subject to the other provisions. Where the constitution itself makes a classification, the charge of discrimination cannot be leveled against such separate treatment. Further the theory of basis structure is available only against an amendment carried out in a constitution and is not available against a provision which is a part of the constitution from its inception. Under the Indian constitution as also citizenship Act, people have the right to acquire or surrender citizenship. Similarly under the state constitution, the legislature has the power to make any law defining the classes of persons, who are, or shall be, permanent residents of the state and also has the power to confer on permanent residents any special rights or privileges. The constitution itself has permitted the legislature to make laws with regard to the citizenship or permanent residents. I am, therefore, of the view that Note III of 1927 Notification cannot be declared as ultra vires the constitution on any ground whatsoever. Complete answer is contained in Article 35 A especially applicable to this state. Under the said provision, which begins with a non obstante clause all the existing law, which are in force in this state are protected and any enactment made by the state legislature relating to permanent residents, their status, rights and privileges or relating to their employment, acquisition of immovable property, settlement in the state or grant of scholarships, are also protected.
22. Article 35 A, in my view takes away the right of the permanent residents of the state, which they possess as citizens of India, to challenge position under the existing law relating to permanent residents as also future legislative enactments, so long as they relate to the matters mentioned in the said provisions. The two Notifications including Note III, to the extent indicated in Section 6 of the state constitution, are completely protected. That being the position under the constitution itself, the submissions challenging their validity have to be rejected. This conclusion is further re-enforced by Article 367 of the constitution of India in its application to this state.
23. Political rights of the permanent residents of the state are contained in Section 51,69 and 140 of the state constitution, which provide that only a permanent residents of the state can be registered a voter, such person only can become member of Legislative Assembly and if at any point of time during his tenure such person loses his status as a permanent residence, such member acquires disqualification. It is obvious that a woman, who acquires nationality of her husband in terms of Note III, and if her husband is not a permanent resident of the state, she will lose her rights contemplated by the Constitution. Right to acquire immovable property.
24. There are several provisions which disable a non permanent resident to acquire immovable property in the state of Jammu and Kashmir. Some of these are; Section 4 of the Alienation of land Act (1938 A.D). Section 17 of the Agrarian Reforms Act, Section 139 and 140 of the Transfer of Property Act, Section 17 and 33 of the cooperative societies Act etc. All these provisions prohibit “transfer” of immovable property in favour of a non permanent resident unless a provision to that effect is made by the Legislature. It is for this reason that amendments have been carried out in Transfer of Property Act to enable the people to transfer, by way of mortgage or any other kind of encumbrance, their immovable property in favour of Financial Institutions and Banks which, in the eyes of law are artificial persons. Though at one stage Notification of 1927 in terms of Class IV included companies, subject to the conditions mentioned therein, in the definition of the ‘state subject’. But Section 6 of the state constitution makes no such provision. Nothing has been brought to our notice to show that any law made by the state Legislature permits ‘ transfer’ of immovable property in favour of a non permanent natural person. Our attention has also been drawn to a case titled Devi Dass V/S Panna Lal, Reported in AIR 1959 J&K 62. It is a decision of coordinate Bench and a view has been taken that a “will” in favour of a non permanent resident is valid. Some of the learned counsel have submitted that the view taken in the said Full Bench decision needs to be reconsidered. In my opinion the submissions of the counsel is not without substance. In my understanding of the legal position relating to transfer of immovable property, I am inclined to accept the view that “transfer” does not only mean sale but includes “will”. A super structure raised on land is an immovable property. The law prohibits transfer of immovable property. What cannot be done directly, cannot be done indirectly is a settled position of law. If a non permanent resident cannot become owner of ‘Land’ immovable property how can be become owner of super structure built on land after the ‘will’ becomes operative. What would happen in a situation where the super structure is demolished or is gutted in fire or collapses? Will such non permanent resident have the right to rebuilt on the basis that he was the owner of the super structure when admittedly he is not the owner of the land. Can such person validity transfer title in the super structure, when standing without transfer of any right in the land on which such structure exists. Above all, in the event of sale of super structure by such person will not the sale Deed become clinching evidence of his being a permanent resident of the state. These are some of the issues which arise for consideration. The implications of the Judgment are such that they have the effect of defeating laws relating to the rights and privileges of the permanent residents. I would , therefore, on my part, hold that the view taken in the Devi Dass case needs reconsideration on the premises that “transfer” includes “will” and that such a transfer is not permissible in favour of a non permanent resident, under the provisions of the constitution and the law. Since the judgment has been delivered by a coordinate Bench (Full Bench) the issue can be considered only by a larger Bench. Two more decisions have also been brought to our notice. These are ; Bihari Lal V/S Bihari Lal, Reported in AIR 1972 J&K 114 and J&K Bank Ltd. V/S Muhammad Bangroo (AIR 1969 J&K 25). It has been urged by the counsels that the core issue involved in these decision relates to the meaning of the word “transfer”. These decisions demonstrate that ‘transfer’ would mean all modes of transfer of immovable property recognized by law yet one of the modes of transfer has been excluded from its purview in Devi Dass’s case. Having regard to these decisions, So far as acquisition of immovable property is concerned, Whether by natural or artificial persons but even by private concerns taking immovable property on lease) the issued has wider implications and the decisions delivered by the Full Benches earlier, with respects, do not clearly lay down the legal position.
25. But the thrust of the submissions of the learned counsel for the parties has also been as to the questions of inheritance of the property by a woman who has lost her status as a permanent resident under Note III of 1927 Notification.
26. Under Section 4 of the Sri Pratap consolidation of laws Act, Personal law of the parties has been made applicable, in matters of inheritance Under Islamic Law Property devolves upon successors according to the prescribed principles of inheritance and these principles do not recognize citizenship or permanent residency as the basis of inheritance or the property. Similarly under Hindu Law, parties inherit property according to the succession Act.
27. In the matter of a woman, marrying non permanent resident different situation can arise; Situation No. 1
A woman, before her marriage may already be holding any immovable property on the basis of being a permanent resident.
A woman may come to inherit immovable property byway of succession or inheritance, at a time when she is already married to a non permanent resident and has lost her status as a permanent resident.
Situation No 3:
A woman who already owns property before Marriage, at the time she is permanent resident, who will inherit her property consequent to her death, and whether the successor will acquire the status of a permanent residents.
28. In the above situation the crucial question is with regard to her rights of ‘inheritance; distinguishing it from acquisition. I am inclined to take the view that a woman, who acquires any property and on the date of acquisition she is a permanent resident of the state, the transfer in her favour is valid and cannot be questioned. After such woman marries a non permanent resident and acquires the status of her husband, she cannot acquire ‘by way of transfer any immovable property’ but if she succeeds as a legal heir, by way of inheritance under personal law she can hold and own such property which has fallen to her share. But the difficulty arises what happens to the property owned by her, after her death?
29. In the ordinary course under the personal law, the property would be inherited by her children, if any, and may be by her non permanent resident husband too. But the question is whether her children or the husband or any other person who inherits the property of such woman, also acquires status of a permanent resident? The children will acquire the status of their father and not that of their mother. But having inherited immovable property of their mother whether they also acquire the status of a permanent resident on the premises that they own immovable property?
30. There is another aspect, what will happen in the event of a divorce of a woman who before the marriage is a permanent resident, after marriage with a non permanent resident loses her status as such, but is divorced after such marriage? Will her status revive or she has lost it for ever. One view can be that since it is the marriage which resulted in loss of status, with a non permanent resident, and when the marriage no longer exists their is no reason as to why her status should not be restored. The second view is that acquiring status is a matter exclusively based on him and desires of a woman. Having voluntarily contracted marriage with a non permanent resident she cannot restore her earlier status even after divorce or death of her husband.
31. The issue needs to be considered. There is no decision of this court in which said aspect have been settled. In the case of Syed Hakim Ali Shah V/S Nawab Bibi and others, Reported in 39 PLR J&K 61, a Division Bench of this Court ruled that Mst. Ghulam Kubra, notwithstanding the gift, since she was married to a non permanent resident, could still inherit the property of her father. The judgment does not say what would happen to the property after her death. There is no other decision brought to our notice in so far as this aspect of the case is concerned. I am, therefore, of the opinion that having regard to the considerable importance of this issue the matter requires to be considered by a Larger Bench.
Right of Employment.
32. It has been urged by the counsel for the petitioner that Rule 17ofCCARules, 1956 and Article 35 of the C.S.R which provide being permanent resident of the state as a condition of appointment, apply at the time of initial appointment and that there is no disqualification provision made in any law. I have examined the position and I am inclined to agree with the submissions of the learned counsel. I am of the view that at the time of initial appointment, if a person qualifies as a permanent resident of the state, such person does not a lose his continuance in the employment by virtue of having lost his status as a permanent resident of the state . There is no rule or regulation providing for such a disqualification. I, therefore, hold that a woman who in employment of the state and at the time of initial appointment is permanent resident of the state can continue to be in employment of the state even after her marriage with the non permanent resident.
Education and Scholarship rights.
33. The 1927 Notification protects educational and scholarship rights of the permanent residents of the state, it being on the privileges. It is therefore open for the state to provide status of permanent residency as one of the conditions of admission in the Educational Institutions includings professional, technical etc. In fact the government will have no choice in the matter having regard to the existence of such a privilege under the constitution and Law. It is the Legislature alone which can after the privilege or the right. The power under the constitution to confer rights and privileges exclusively vests in the Legislature and not in the Government. Any condition appearing in any notification relating to admission in the Institutions providing holding of permanent resident status as a condition of admission is in my opinion, a valid condition and cannot be questioned being protected under the constitution and being one of the rights and privileges which the permanent resident of the force constitution.
34. In the ultimate analysis, I agree to the view of brother V.K Jhanji, J only to the extent that a female non permanent resident of the state on her marriage to the permanent resident of the state will have right to inherit the property in accordance with the personal law of the deceased; regarding employment education and other rights; which I have enumerated in my separate judgment. However, I do not agree to the ultimate conclusion that a female will not lose the status as a permanent resident on her marriage with a non-permanent resident of the state on the disability discussed and raised in paras 22,23,26,27 and 29 of my separate judgment.
83. In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.
84. Registry is directed to place the cases before the appropriate Bench, in accordance with the roster.