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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
R.P. Sethi, J.
Vijay Machanda & Anr. - Appellant
Versus
State Of J&K & Ors. - Respondent
Writ Petition No. 215/1985
Decided On : 08 October, 1987
PERMANENT RESIDENCY - STATE SUBJECT STATUS - JAMMU AND KASHMIR GRANT OF PERMANENT RESIDENT CERTIFICATE (PROCEDURE) ACT, 1963 - SECTIONS 4, 5, 6 - HINDU ADOPTION AND MAINTENANCE ACT, 1956 - SECTIONS 6, 7, 8, 9, 10, 11 - ADOPTION OF NON-STATE SUBJECT BY STATE SUBJECT - VALIDITY - CONDITIONS - POWERS OF REVENUE MINISTER - REVIEW - GOVERNMENT APPROVAL - LEGAL PRINCIPLES GOVERNING ADOPTION UNDER HINDU LAW.
Fact of the Case:
Petitioners, claiming to be grandsons of Kahan Chand, a state subject, applied for permanent resident certificates. The Dy. Chief Minister/Revenue Minister granted their application, but the state challenged this decision. The petitioners filed a writ petition, which was withdrawn upon assurance of the state to consider their request within two months.
Finding of the Court:
The court held that the adoption of the petitioners' father by Kahan Chand was valid under the Hindu Adoption and Maintenance Act, 1956. The court also held that the Revenue Minister had the authority to grant the petitioners permanent resident certificates and that the state's refusal to do so was unjustified.
Issues: 1. Whether the adoption of the petitioners' father by Kahan Chand was valid under the Hindu Adoption and Maintenance Act, 1956? 2. Whether the Revenue Minister had the authority to grant the petitioners permanent resident certificates? 3. Whether the state's refusal to grant the petitioners permanent resident certificates was justified?
Ratio Decidendi: 1. The court held that the adoption of the petitioners' father by Kahan Chand was valid under the Hindu Adoption and Maintenance Act, 1956, because it complied with the conditions set out in the Act. The court noted that adoption under Hindu law is a sacrament that cannot be revoked or canceled and that it has the effect of transferring the adopted son from his natural family into the adopter-family. 2. The court held that the Revenue Minister had the authority to grant the petitioners permanent resident certificates under section 6 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Act, 1963. The court noted that the Revenue Minister is the competent authority under the Act and that his order is final. 3. The court held that the state's refusal to grant the petitioners permanent resident certificates was unjustified. The court noted that the state had assured the petitioners that it would consider their request within two months, but that it had failed to do so. The court also noted that the state's apprehension that allowing adopted sons to acquire the status of a State Subject would open the flood gates for Non-state Subjects to acquire the status of State Subject in the State of Jammu & Kashmir was without any basis and misconceived.
Final Decision: The court directed the respondents to take effective steps for the implementation of the order of Deputy Chief Minister/Revenue Minister dated: 10-10-1987 by issuing the permanent resident certificate in favor of the petitioners as directed in the aforesaid orders. The respondents shall comply with directions within a period of three months from today. The petitioners are also held entitled to Rs.200/- as costs.
2, In the counter affidavit filed on behalf of the respondents it is admitted that the petitioners had applied for the grant of permanent residence certificate in their favour which was rejected by the Dy. Commissioner vide his order dated: 25th July, 1977 against which a revision was filed before the then Dy-Chief Minister who was also the Revenue Minister and the same was accepted by setting aside the order of respondent No. 3, the Dy-Commissioner. Aggrieved by the aforesaid order, a review petition was moved by the State which was also dismissed by the Revenue Minister vide his order dated 8-8-1978. It is submitted that thereafter a reference was made by the Divisional Commissioner to the Government in terms of the provisions of sec. 6 of the Jammu and Kashmir grant of Permanent resident Certificate (Procedure) Act, 1963, as the matter involved a substantial question of law and public interest. It is alleged that the Government was still seized of the matter and its decision as to whether the order of the then Dy-Chief Minister should be recinded or not, is under active consideration of the State. It is disputed that the Dy. Chief Minister/Revenue Minister was competent to pass the order relied upon by the petitioner.
3. I have heard the learned counsel for the petitioner and perused the record.Permanent resident of the State means a person who is or which is deemed to be permanent resident under section 6 of the Constitution of J&K State. Section 6 of the Constitution of the J&K provides:
"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 a 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 immoveable 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 Siate 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 Legisature 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 II" shall have the same meaning as in State Notification No. I-L/84 dated the twentieth April, 1927, read with State Notification No, 1
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