Reorganising J&K: PIL rejected
The bench said it was to be noted that in Kusum Ingots and Alloys Limited case, the vires of SARFAESI Act was put to challenge.
Chennai: The Madras high court has rejected for want of territorial jurisdiction, a Public Interest Litigation, which sought to declare as unconstitutional and null and void, the Jammu and Kashmir Reorganisation Act.
A division bench comprising Justices M.Sathyanarayanan and N.Seshasayee dismissed the PIL filed by Desiya Makkal Sakthi Katchi represented by its President M.L.Ravi.
The bench said K.Sakthivel, counsel for the petitioner, by placing heavy reliance upon the decision of the Supreme Court in Kusum Ingots and Alloys Limited case, submitted that in the light of abrogation of Articles 370 and 35A by way of Presidential Order and the enactment of the Jammu and Kashmir Reorganisation Act , without approval of the Jammu and Kashmir State Assembly, the petitioner being a citizen of India is entitled to make a challenge to the vires of the said provisions as well as the procedure adopted in doing so.
The bench said it was to be noted that in Kusum Ingots and Alloys Limited case, the vires of SARFAESI Act was put to challenge. SARFAESI Act has application through out India except the state of Jammu and Kashmir at the relevant point of time. A perusal of the facts leading to the filing of the said appeal before the Apex Court would disclose that the appellant company had registered office at Mumbai and had availed loan from the Bhopal branch of State Bank of India (Madhya Pradesh) and the second respondent therein had issued a notice calling upon the Company to repay the said loan.
The Apex court has taken into consideration the facts pleaded in the writ petition and also that a Parliamentary Legislation when receives assent of the President of India and published in the Official Gazette unless specifically excluded, will apply to the entire territory of India and therefore, the same would give rise to a cause of action and hence, the writ petition questioning the Constitutionality thereof can be filed in any high court. “In the considered opinion of this court, the said decision have no application to the case on hand, especially with regard to the objection raised by the Registry of this court on the ground of territorial jurisdiction for the reason that the abrogation of Articles 370 and 35A by way of Presidential Order and the enactment of Jammu and Kashmir Reorganisation Act would have application only to Jammu Kashmir and Ladakh regions and that is the distinction between the facts of the present case and the facts of the case in Kusum Ingots and Alloys Limited”, the bench added.
The bench said the petitioner, admittedly, was not a resident of the said State and if at all, any person was aggrieved by the abrogation and enactment, could bethe person who was a permanent resident of the then State of Jammu and Kashmir. “It is also brought to the knowledge of this court that similar challenge has been made before the Supreme Court of India and the same is pending consideration before Constitution Bench which also started hearing the matters. In the light of the reasons assigned above, this court is inclined to uphold the objections raised by the Registry as to the territorial jurisdiction of this court to entertain this writ petition”, the bench added.