ORDER
1. Petitioners were granted permanent residents certificates (P.R.Cs) by Tehsildar R. S. Pura. Later on Deputy Commissioner, Jammu, respondent No. 2, on complaint filed by Jaggu Ram, respondent No. 3 herein, made a recommendation to the Revenue Minister for cancellation of the abovesaid P.R.Cs issued in favour of the petitioners and the Revenue Minister on April 3, 1981 cancelled the same. Petitioners in this petition have challenged the order of the Revenue Minister, respondent No. 1, and prayed for quashing the same.
2. Petitioners case is that they are permanent residents of the State of Jammu & Kashmir and impugned order of respondent No. 1 is illegal and without jurisdiction. According to them whole of proceedings initiated by respondents 1 & 2 are liable to be quashed being held without jurisdiction as the power to revise the order issuing certificate of permanent resident in favour of the citizens of the State is available to the Government alone and such power cannot be exercised by the minister. He has also stated that proceedings were initiated by the then Public Relation Officer to the Deputy Chief Minister who did not constitute the Government nor has been authorised by the Government.
3. Petitioners' further case is that under J & K Grant of Permanent Residents Certificates (Procedure) Act, (Act hereafter), an order passed for issuance of certificate of permanent resident of the State can be set aside only in a revision filed before the Government but in the present case no such revision was filed and only a representation in the shape of application was moved and respondent No. 2 acted upon the same. He has also challenged the provisions of Section 6 of the Act being unconstitutional and against the provisions of law, as the Government has been clothed with powers to use the weapon of revision against any person whom they want to discriminate him at any time and according to their choice and sweet-will. Revisional jurisdiction has been exercised after a lapse of 21 years which could not have been done. It has also been stated that petitioner No. 2 is a practicing lawyer and a politically conscience person and he has been organising refugees from West Pakistan for the purpose of achieving their right of getting citizenship in the State due to which respondents had conceived a grudge against him. In this regard petitioner No. 2 was threatened to dissociate himself from the abovesaid organisation. Petitioners have also averred that respondent No. 1 has acted in violation of principles of natural justice inasmuch as he has cancelled their P.R.Cs without summoning them and affording them opportunity of being heard and further ignoring most valuable piece of evidence in favour of the petitioners i.e. copy of register of Census of 971-72 Smvt. year of village Kheri wherein name of the father of petitioner No. 1 Shri Beli Ram existed. According to them Beli Ram and their fore-fathers were permanent residents of village Kheri, Tehsil R. S. Pura, and they migrated to Sialkot district after 19-71-72-Bk and returned back, in 1947 and thereafter they retained their status as permanent resident of the State by virtue of Notification of His Highness dated 27-6-1932 No. 13/L/1989.
4. Petitioners have further stated in their petition that respondent No. 1 has committed an illegality by accepting and relying upon the recommendation of respondent No. 2 who had committed so many illegalities; firstly by not calling the original file from Tehsildar R.S. Pura and wrongly mentioned that the file was not available in the record; secondly that this respondent initiated ex parte proceedings against the petitioner wrongly and statements of the witnesses were also recorded in their absence in which they were not even afforded opportunity to cross-examine the witnesses though application was filed in that behalf; and thirdly; that they were not permitted to lead any evidence in rebuttal. In this manner petitioners have stated that respondent No. 1 passed the impugned order against the petitioners without any evidence on record against them. They have prayed that Section 6 of the Act be struck as being unconstitutional and also orders of respondents 1 & 2 for cancelling their P.R.Cs be set aside.
5. Respondents did not choose to file any reply affidavit despite so many opportunities granted for it.
I have heard the learned counsel for the parties and perused various documents placed on record. Admittedly petitioners were granted certificates of their being permanent residents of this State by Tehsildar R. S. Pura somewhere in July, 1957. One Ch. Jaggu Ram of village Phillar, R.S. Pura, filed application before the Revenue Minister on 25-5-1978 i.e. after 21 years for cancelling of P.R.Cs of the petitioners on the ground of their having migrated to India in the year 1947 from village Chak, Kamma Tehsil Narwal. Sialkot, now in Pakistan, P.R.O. to Revenue Minister sent the application to the Secretary Revenue Deptt. who in turn sent it to Deputy Commissioner for necessary action. The Dy. Commissioner conducted inquiry and submitted report to the Revenue Minister on 24-4-1980 recommending for cancellation of P.R.Cs. of the petitioners as, according to him petitioners were not permanent residents of the State. Revenue Minister vide his order dated 3-4-1981 accepted the recommendation and concelled the P.R.Cs.
6. The petitioners in this petition have alleged that father of petitioner No. 1, Beli Ram, was residing in village Kheri as evident from register of Census of 1971-72 Smvt. of that village and their fore-fathers were also residents of that village but they migrated to Sialkot district after 1971-72 Bk and thereafter returned to the State in the year 1947 under which circumstances they had retained their status as permanent residents of the State by virtue of notification of His Highness dated 27-6-1932 No. 13-L/1989. This notification reads as under:--
'That all the emigrants from J & K State to foreign territbrics shall be considered State subjects and also descendants of those emigrants born abroad for two generations.'
This allegation of the petitioners has remained unrebutted which shows that originally petitioners were residents of village Kheri Tehsil R.S. Pura, from there they migrated to Sialkot and returned back at the time of partition of the country. In this manner they cannot be said to have been divested of their right of being permanent residents of the State.
7. Mr. S. C. Gupta, learned counsel appearing for the petitioners, has argued that petitioners had no knowledge about the proceedings initiated by Deputy Commissioner Jammu on application filed by Jaggu Ram respondent and said proceedings were initiated without any basis and further the Deputy Commissioner recorded evidence of the complainant in their absence. His further plea in this regard is that petitioners later on applied to the Deputy Commissioner for consideration of their case and allowing them to cross-examine witnesses produced by the complainant which was not allowed nor the petitioners granted opportunity to lead evidence in rebuttal and in this manner principle of natural justice was violated by that authority. These arguments of Mr. Gupta are based on the allegations made in the petition and the statement which is on affidavit but Mr. Gandhi, learned Addl. Advocate General, could not reply it because of being handicaped due to non-availability of record. It is surprising and strange that despite pendency of this petition for the last more than nine years respondents did not come With acounter affidavit in any manner to rebut thepleas of the petitioners. Under such circumstances abovesaid argument of Mr. Guptacannot be ignored.
8. The other point raised by Mr. Gupta is that under Section 6 of the Act the Government has only the power to reverse the order of the competent authority granting certificate of permanent resident and the Revenue Minister was not competent to cancel P.R.Cs of the petitioners. Mr. Gandhi has, however, contended that under a Command order issued by the then His Highness of the State Revenue Minister was vested with powers of revision and as such Revenue Minister in the present case has not committed any illegality. I have considered these contentions raised by either side.
9. Section 6 of the Act which grants powers of revision reads as under:--
'The Government may at any time either on its own motion or an application made to it in this behalf call for the record of any case pending before or disposed of by a competent authority and may uphold or reverse orders of the competent authority or may pass any other orders or give any directions, as it may deem fit.
Provided that no orders prejudicial to an interested person shall be passed without giving such person a reasonable opportunity to be heard.'
The Command Order which Mr. Gupta has referred is No. 42-H of 1947 under His Highness was pleased to make following order:--
'In exercise of the powers inherent in him under Section 5 of J & K Constitution Act, 1996 His Highness Maharaja Bahadur has been pleased to command that no suit shall lie in any civil court in respect of matter of grant, dismissal or revocation of State subject certificate or in respect of declaration of a person being a State subject and that the orders of the Revenue Minister passed in exercise of revisional jurisdiction in such cases shall be final.'
The present J & K Permanent Residents Certificates (Procedure) Act, 1963 came into force on 27-3-1963. Section 2 of this Act is relevent for considering the abovesaid propostion of law and this section which pertains to repeal and saving is as under :--
'(1) From the date this Act comes into force all previous laws, rules, commands, orders, circulars and instructions relating to the grant of State subject or permanent residents certificates in so far as they are repugnant to this Act shall be deemed to have been repealed.
(2) Notwithstanding such repeal of certificates granted, actions taken and other things done under law, rules, commands, orders circulars and instructions etc repealed shall be deemed to have been granted, taken or done under this Act.'
There is another aspect which cannot be lost sight of and that is that on 17-11-1956 Sections 1 to 8 and 158 of the Constitution of Jammu & Kashmir came into force. Section 6 defines persons who shall or shall be deemed to be permanent residents of the State at the commencement of the constitution. Section 7 provides that reference in the existing law to hereditary State subject or the State subject shall be construed as references to permanent residents of the State. Such existing law continued to be in force by Sub-section 2 of Section 157 which provides that all laws in force in the State immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by the competent authority. By the combined operation of this sub-section and Section 7 command order, therefore, continued in force with the modification that reference therein to State subject was to be read as reference to permanent resident of the State. Then came the operation of Act in March, 1963. Now comes the question as to whether abovesaid command order survived after the passing of the Act. Such question came for consideration by the Full Bench of this Court in case, Beharilal v. Beharilal, AIR 1972 J & K 114 and it was held in para 13 as under:--
'Thus powers of revision which earlier vested in the Revenue Minister under command order have been given under the Act to the Government, These powers are exerciseable by the Government not only with respect to cases arising under the Act but also in regard to these arising under earlier laws; on the subject, the reason being that 'all certificates granted, actions taken and other things done under such laws' shall, by force of Sub-section 2 of Section 2 of the Act, be deemed to have been granted taken or done under the Act. That being so the Act and the command order cannot co-exist for any purpose whatever. The command order is repugnant to the Act and must be deemed to have been repealed by the Act.
It is thus clear from above discussed law and the finding arrived at by the Full Bench of this Court that above referred command order being repugnant to the Act cannot be taken into consideration and has to be ignored altogether. Under Section 6 of the Act only Government is empowered to revoke or cancel permanent resident certificate issued by a competent authority under law, In the present case the Revenue Minister has passed the impugned order in revision which he was not competent to do so.
10. The petitioner has also challenged the vires of Section 6 of the Act but such point was not pressed during the course of arguments.
11. For the aforesaid reasons impugned order passed by the Revenue Minister cancelling P.R.Cs of the petitioners is quashed. There will be no order as to costs.