ALL INDIA KASHMIRI SAMAJ AND OTHERS V. UNION OF INDIA & ANOTHER

Writ Petition (Civil) No.(S). 534 Of 2006

Bench:T.S Thakur (C.J), R. Banumathi, Uday Umesh Lalit, (JJ)

Petitioners: All India Kashmiri Samaj and Others

Counsel for Petitioners: Mr. T.K Ganju, Sr. Adv., Mr. Manik Ahluwalia, Adv., Mr. Abhishek Bhardwaj, Adv., Mr. Rajiv Talwar, Adv.

Respondents: Union of India and State of J&K

Counsel for UOI: Mr. Maninder Singh, ASG, (Union of India), Ms. Binu Tamta, Adv., Ms. Sadhana Sandhu, Adv., Ms. Sushma Suri, Adv.

For the State of J&K: Mr. Sunil Fernandes, Adv., Ms. Astha Sharma, Adv., Ms. Mithu Jain, Adv., Mr. Puneeth K.G, Adv.

Issues in Question:

● Whether Kashmiri Pandits should be categorized as Internally Displaced Persons as per the definition adopted by UN High Commission of Human Rights ?

● Whether there was a stated massacre and encroachments on the properties of the said Kashmiri Pandits.

Provision Involved: Article 32 of Constitution of India

Facts: During the year 1989-90 in the then state of Jammu and Kashmir, riots took place and in that the clan of Kashmiri Pandits was allegedly hugely massacred and murdered and they were displaced from their respective properties and encroached by the natives and Govt. of J&K. Therefore, this petition has been filed to the Hon’ble Supreme Court of India for seeking relief.

Prayer Sought: The Petitioners through their learned counsels sought the following reliefs:

● A direction to declare Kashmiri Pandits as “Internally Displaced Persons” within the meaning of the guiding principles on “Internally Displaced persons” adopted by ‘Office of the U.N High Commissioner for Human Rights’.

● A direction to the respondents to investigate and prosecute cases of massacre and murders of the Kashmiri Pandits as submitted in the writ petition.

● A direction to remove all encroachment on properties within the State of Jammu and Kashmir with a direction that properties, movable or immovable, sold by displaced persons after 1989-90 be declared as ‘Distress Sales’.

● A direction to the State Government not to acquire any property owned by any Kashmiri Pandit without the prior concurrence of the Ministry of Home Affairs, Government of India.

● A direction to provide permanent housing accommodation to all the Kashmiri minority migrants living in various parts of the country.

Arguments by Respondents: The State of Jammu & Kashmir and the Government of India through their learned counsels filed a counter affidavit and a 407 pages rejoinder and Mr. Sunil Fernandes, learned counsel for the State of Jammu and Kashmir submitted that matters concerning relief and rehabilitation of Kashmiri migrants are being handled by the Relief and Rehabilitation Department of the Government which is located in Jammu itself and therefore, contented the petition to be transferred to Jammu & Kashmir.

Decision by the Hon’ble Supreme Court:Having thoroughly heard the learned counsel for the parties, the court opined that it will be more appropriate if the petition is transferred to the High Court of Jammu and Kashmir at Jammu for hearing and disposal in accordance with law. As it will obviously be more convenient to both the parties to urge all such contentions as may be open to them before the High Court of Jammu and Kashmir at Jammu where the concerned departments and the relevant records are located and would be easily accessible . Thus the Hon’ble Court transferred the petition to the High Court of Jammu and Kashmir with a request to the Chief Justice of that Court to assign the matter to an appropriate Bench so that the same can be disposed off as expeditiously as possible and directed the parties to appear before the High Court of Jammu and Kashmir through their respective counsels with the dispatch of the Registry on record to the High Court at the earliest and without any costs to the parties.