Divided
on Sarfaesi Act, Kashmir Bar may not support separatists’ stir on SC verdict
In J&K High Court, ex-Bar chief alongwith GOI
counsel argued strongly in favour of SARFAESI; incumbent Bar President opposed
it
Ahmed Ali Fayyaz
_______
JAMMU,
Dec 19: Notwithstanding a barrage of statements from both, the separatist as well
as the mainstream opposition leaders in Kashmir valley against the Supreme
Court of India verdict, Srinagar-based High Court Bar Association (HCBA) seems
to be unlikely to take a stand on enforcement of the Central law giving powers
to banks and other financial institutions to auction the mortgaged immovable
properties of the defaulting borrowers in Jammu and Kashmir.
Even as some of its top
functionaries, while responding to newspersons’ queries, have maintained what
they argued as private counsels previously in J&K High Court, HCBA
significantly had not issued any statement in support of the separatists’
diatribe till late on Monday.
Announced on December 16,
the judgment of the Supreme Court judges Kurian Joseph and R.F. Nariman has
stirred a hornets’ nest in Jammu and Kashmir as it has been resolutely hailed
by the Jammu-based political parties, including BJP and National Panthers
Party, but stoutly assailed by almost all the separatist and mainstream parties,
including Omar Abdullah’s National Conference (NC).
While granting the
financial institutions right to auction the mortgaged immovable properties of
the permanent residents of Jammu and Kashmir in the event of their failure to
pay back the loans, the Supreme Court has categorically set aside judgment of
the Jammu and Kashmir High Court that had barred the banks from proceeding
against the defaulters under the central law titled Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002, (SARFAESI) in the State of Jammu and Kashmir.
The legal battle in JKHC
had witnessed a drama of sorts including sudden resignation of the Mufti Mohammad
Sayeed government’s Advocate General Riyaz Ahmad Jan in the thick of the
arguments on June 25 — within 100 days of his appointment on March 15, 2015. Legal
circles insist that Mr Jan —who asserted that the Mufti government had
compromised dignity of the AG’s office, but never elaborated— wanted to oppose
enforcement of the Sarfaesi Act but was “under pressure” from the PDP-BJP coalition
to remain equivocal and borrow time.
The opposition politicians,
as well as the independent writers, have invariably attached intrigue to the
Mehbooba Mufti government’s “lackadaisical attitude” while pointing out that no
eminent lawyer appeared in Supreme Court to defend the State’s exclusive right
of legislation on matters of immovable property. The entire job was left to the
State’s standing counsel. Even the Advocate General and the senior AAGs played
truant.
On the other hand, Attorney
General Mukul Rohtagi, joined by eminent lawyer Rakesh Dwivedi, appearing on
behalf of State Bank of India and the Government of India, defended the
different banks’ notices to the defaulters and enforcement of Sarfaesi Act in
J&K. The judges decreed in their favour, asserting that J&K Sate had a
special constitutional status but did not enjoy any “sovereignty” within the
dominion of India.
“From High Court to Supreme
Court, it was a discussion simply to determine whether it was the Parliament or
the State Legislature that was by law and Constitution empowered to make laws
related to this issue. High Court upheld that it was none other than the State
Legislature. Supreme Court quashed that judgment and decreed that it was the
Parliament”, former judge of JKHC Justice (retired) Hasnain Massodi explained.
HCBA apparently has its
constraints in not taking a public stand as its top faces Mian Abdul Qayoom and
Zaffar Ahmad Shah held divergent positions in JKHC. HCBA has been a constituent
of the separatist conglomerate Hurriyat Conference and both, Mr Qayoom and Mr
Shah, have been disputing J&K’s accession to India and struggling for
Plebiscite under the UN resolutions.
While appearing on behalf
of private petitioners, HCBA President and top notch lawyer Mian Qayoom, and
senior advocate Altaf Haqani in JKHC opposed enforcement of Sarfaesi Act tooth
and nail. They held that it was a matter of “administration of justice” in
which the Executive or Legislature of the Government of India had no authority
to legislate or make rules.
Mr Qayoom attracted the
Bench’s attention to Article 370 of the Constitution of India and submitted
that the mechanism prescribed in the said article for application of laws to
the State of J&K, had not been followed. He argued that clause B (i) of
Article 370 had restricted the power of the Parliament to make laws for the
State of J&K to those matters in the Union List and the Concurrent List,
which in consultation with the Government of the State, were declared by the
President to correspond to matters specified in the Instrument of Accession. He
also referred to clause B (ii) of Article 370 and submitted that other matters
in the Union List may be applied to the State of J&K with concurrence of
the Government of the State by the President. He contended that this
constitutional mechanism had not been followed for application of law to the
State of J&K.
Mr Qayoom also referred to
an application/ affidavit filed by the State of J&K in a writ petition in
Jammu wing of the Court and submitted that the State of J&K had raised
objections in respect of enforcement of the Act of 2002 in the State of
J&K. He referred to section 140 of the Transfer of Property Act, 1882 (a
State Act) to indicate that application of the Act of 2002 had directly
impacted the fields of legislation, for which laws could be exclusively made by
the State legislature.
On the contrary, former
HCBA chief and the top advocate Zaffar Ahmad Shah, appearing on behalf of the
Jammu and Kashmir Bank, argued strongly in favour of enforcement of the
Sarfaesi Act in J&K, while claiming that the Parliament was within its right
to make related laws for J&K State.
Zaffar Shah submitted that
in view of Entry 45 of List-I, (Union List) of 7th Schedule of the Constitution
of India, the Parliament was competent to legislate the Act of 2002. He emphasised
that the Central Government had amended the Rules of 2002 and it had been
prescribed that while enforcing the Act of 2002, the interests in the immovable
property could be transferred only in favour of the State subject. He also
submitted that in view of the amendment made in the Rules of 2002, grievances
of the petitioners stood redressed.
Mr Shah, while referring to
Article 370, submitted that in view of the Constitution (Application to Jammu
and Kashmir) Order of 1954 (C.O. 48-S.R.O 1610 dated 14-05-1954) issued by the
President of India, the Central Government had been authorised to legislate
laws in respect of Entries in the List-I, (Union List) of 7th Schedule of the
Constitution of India, including entry 45, which Entry, he argued, stood
extended to the State of J&K in terms of the aforesaid constitutional
order. He further submitted that it had been held by the Supreme Court, in case
reported in (2009) 4 SCC 94 that the Act of 1993, as also Act of 2002, had been
enacted in terms of Entry 45 of List-I, (Union List) of 7th Schedule of the
Constitution of India.
Mr Shah argued that in view
of the Authoritative Pronouncement of the Supreme Court, the issue that
enactment falls within the purview of Entry 11 (a) of List-III, (Concurrent
List) of 7th Schedule of the Constitution of India, had been “rendered
irrelevant”. He asserted before the JKHC Bench that huge amounts of money had
crystalized into Non Performing Assets. He submitted that withholding of huge
amounts by the borrowers was “directly and adversely affecting the economic
growth of the State of J&K”.
However, Mr Qayoom’s team won
the case in JKHC. Even as Mr Shah did not appear in Supreme Court, his
arguments in favour of the enforcement of Sarfaesi Act were further
strengthened by Attorney General and other eminent lawyers engaged by the
Centre to defeat a State that was in tacit collaboration with the Centre. Finally
the verdict on December 16 came in favour of the Centre and the banks of which
one respondent bank is controlled by Government of Jammu and Kashmir.
END
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