Incredible: Nobody in Mehbooba’s Govt knew SARFAESI was being heard in Supreme Court?

Govt’s stand was never discussed in Cabinet or vetted by Law Department; no record of counter-affidavit; even the standing counsel was absent when an unprepared AG appeared before the Bench

Ahmed Ali Fayyaz

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JAMMU, Dec 23: When the Jammu and Kashmir Advocate General Jehangir Iqbal Ganai met the eminent Supreme Court lawyer Gopal Subramaniam at latter’s office in New Delhi at 6.30 pm on December 5, he definitely did not discuss with him legality of the application of the Central law SARFAESI Act 2002. First: The J&K Government’s Law Department had never assigned that particular case to the AG. Second: AG had little idea of its being in the final stage of arguments with the Bench of Justice Kurian Joseph and Justice R.F. Nariman.

“I believe the pleadings are still incomplete. Who told you it’s listed for arguments tomorrow?”, Ganai asked his assistants Mehfooz Nazki and Mr Raina. He quickly did a surfing on the Supreme Court’s cause list and was taken aback to learn that the State’s most discussed case was listed for arguments on December 6, 7 and 8. It was marked as "part heard". He immediately flashed it to Law Secretary Abdul Majid Bhat in Jammu, attempting to know about the Government’s brief on it. For the whole day on December 6, and until he returned and landed in Jammu on December 7, Ganai did not receive any reply from Law Secretary.

So, what did the J&K AG discuss with Subramaniam? Asked him why Niira Radia described him “a very upright person” in her telephonic conversation with Ratan Tata that was taped by Income Tax department? Wanted to know why he quit in protest as Solicitor General of India when Manmohan Singh’s government decided to field then private lawyer R.F. Nariman in a high profile telecommunication case? Wanted to learn how he functioned as Chairman Bar Council of India? Desired to know how Subramaniam pleaded as CBI’s prosecutor in the Bombay blasts of 1993? Or how he got Ajmal Kasab to gallows for the 2008 terror strike in Mumbai? Or how he argued in the matter of 2001 terror attack on the Indian Parliament?

None of the above, indeed!

During an extensive investigation, STATE TIMES learned that Ganai had arrived in New Delhi on December 5 for engaging Subramaniam, days after he alerted Law Department over a news in The Times of India which reported that Supreme Court of India would discuss Article 370 [that accords special status to J&K State] in a Special Leave Petition (SLP) titled Mohammad Hanief Lone and others versus Ashok Kumar Sharma and others on December 9. The legal battle over promotion of open and reserved categories between incharge Chief Engineers and incharge Superintending Engineers of the J&K Irrigation and Flood Control Department had taken a dramatic turn as some petitioners challenged Article 370 after losing their case in J&K High Court. After the meeting, Subramaniam sent his consent by WhatsApp to the J&K Accountant General.

Ganai had also to appear before National Green Tribunal (NGT) on December 6 in two important petitions — one filed by environmental activist Dr Irfan against a garbage disposal ground at Achhen, on Srinagar outskirts, and another pursued by Maneka Gandhi associate Gauri Malekha for banning passage of mules from Katra to Shri Mata Vaishno Devi Cave atop Trikuta Hills in Jammu.

When on December 6, purportedly of his own, Ganai visited the Kurian-Nariman bench, the arguments from the private petitioners Zafrullah Nehru and Santosh Gupta’s counsel Vijay Hansaria were already in progress. J&K Government’s Advocate on Record Sunil Fernandes was pursuing a different case in a different court. The only file of SARFASEI case was in his possession and the AG was simply groping in the dark as he had failed to receive any brief from the Government in Jammu.

Incredibly, STATE TIMES learned that the Government’s stand, which, at its face, was a major policy matter, was discussed not once in Mufti Mohammad Sayeed’s or Mehbooba Mufti’s Cabinet after it was decided by Justice Muzaffar Hussain Attar and Justice Ali Mohammad Magrey in J&K High Court on July 16, 2015, and subsequently challenged by the banks through SLP in the Supreme Court.

Well-placed sources in Civil Secretariat insist that there is no record of any brief having been vetted by the Law Department. So this was not for nothing that Sunil Fernandes’ interview — in which he told a Srinagar-based newspaper what he had proposed on behalf of the State — came as a surprise to legal and political circles. “That’s a key policy matter on which the coalition partners (PDP and BJP) have divergent views. How could a junior advocate in Supreme Court speak on behalf of the Government without a Cabinet or Law Department brief?”, a senior bureaucrat pointed out.

According to the sources privy to the developments, Advocate General had on December 5 night advised Fernandes to seek deferment of the hearing of the arguments till December 13 by which time, he thought, a brief would pour in from Jammu. However, Fernandes did not raise questions on how the arguments would initiate when the pleadings were still incomplete. He did not seek any adjournment either. For most of the time, he remained absent. Ganai’s impromptu and desperate submission that the State would make its own SARFAESI law in the next session of the Legislature went unheard.

With the State going unrepresented, the Bench reserved judgment on December 8 and announced the same on December 16 in favour of the banks represented by Attorney General of India Mukul Rohtagi and senior advocate Rakesh Dwivedi, triggering a political controversy over J&K's "sovereign jurisdiction of legislation" in such matters. If sources in Law Department are to be believed, even an affidavit or counter-affidavit was never approved by the competent authority in the State government or filed in the Supreme Court after being vetted by the Law Minister. Who exactly is responsible for the "lapse"? Was it the State government's insensitivity and non-seriousness or an act of connivance and collaboration with the BJP-ruled Centre? One remains at a loss to understand.

END

[Published in today's STATE TIMES]

What was J&K Law Minister, Advocate General doing in Delhi on December 5-7?

J&K Govt’s connivance is more evident than ‘non-seriousness’ in SARFAESI episode

Ahmed Ali Fayyaz

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JAMMU, Dec 21: With virtually everybody in the opposition, from Hurriyat Conference to National Conference, blaming the Mehbooba Mufti Government for “non-seriousness” while dealing with the SARFAESI petitions in Supreme Court of India, it appears that the coalition in Jammu and Kashmir was actually in connivance with New Delhi to ensure defeat to so-called ‘Kashmir sentiment’.

Investigating the reasons behind the State government’s lackadaisical attitude vis-à-vis the petitions seeking enforcement of 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, STATE TIMES has learned that both, Law Minister Abdul Haq Khan and Advocate General Jehangir Iqbal Ganai, were very much present in New Delhi during arguments of the case in Supreme Court.

According to the official records in possession of this newspaper, Law Minister Abdul Haq Khan camped in New Delhi for about four days when the arguments were underway on the petition before Justice Kurian Joseph and Justice R.F. Nariman. Mr Khan arrived in New Delhi on December 4 and returned to Jammu by the morning flight on December 7. After staying in Jammu for three days, he flew to Srinagar with Chief Minister Mehbooba Mufti in the State government’s aircraft on December 10 and returned to the winter capital on December 13.

Advocate General arrived in New Delhi on December 5. He stayed there for two days and returned to Jammu on December 7. Before his departure, he was spotted in company of Justice (retired) Bilal Nazki’s son and a Kashmiri Pandit Mr Raina.

During the same time, when Law Minister and Advocate General were camping in the Union Capital, the Supreme Court bench heard counsels of the petitioners and respondents on December 6 and 7. The Bench announced the judgment on December 16. This makes clear that there was no “non-seriousness” towards the SARAESI petition on the part of the Mehbooba Mufti government but raises question as to why Law Minister and the Advocate General left entire job to a junior counsel, the advocate on record Sunil Fernandes.

In certain crucial matters, previous State governments are known to have specially engaged the country’s top lawyers like Fali Nariman, father of one of the judges who adjudicated on SARFAESI Act’s applicability to Jammu and Kashmir. In recent times, Omar Abdullah’s government had engaged eminent Supreme Court lawyer Harish Salve for a hefty fee when it wanted to ensure that the detained Superintendent of Police Javed Iqbal Matoo does not bail in so-called twin rape-and-murder case of Shopian in 2009.

Even in the recent matter of a Dy SP’s alleged hand in the death of a civilian protester, the State government is known to have engaged a senior lawyer for the officer’s defence.

Even as a barrage of criticism is pouring in from the Valley, raising questions and presuming quid pro quo of the Law Ministry functionaries with the Centre, STATE TIMES is still investigating as to why a senior lawyer or the Advocate General himself did not appear in defence of the State’s stated position. Mr Khan did not respond to phone calls. Officials in Law Department maintained that he was currently in Mumbai.

Mr Ganai said through WhatsApp that he would respond to questions after returning to Jammu from Srinagar. Sources in the Law Department confirmed his presence in New Delhi on December 5, 6 and 7 and claimed that on December 6 he “briefly appeared” before the Supreme Court Bench. “He contended that Government of Jammu and Kashmir would soon bring its own SARFAESI legislation in the next session of the Legislature. But neither his attendance nor his argument was recorded. He immediately left the court”, said an official, claiming that nobody knew why the State government’s contention had gone unheard.

This newspaper is investigating whether the Law Minister and the Advocate General were under pressure from Government of India to remain mute to the proceedings in Supreme Court or there was some other consideration. Remarkably, after the Opposition began raking up this issue, Mr Khan publicly approved of the judgment and called it “an achievement” for J&K State.

Author of at least one book on law and a legal practitioner himself for over three decades, Mr Khan lately co-hosted an official function for Chief Justice of India Justice T.S. Thakur in Jammu.

END

[Published in today’s STATE TIMES]

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

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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

3 soldiers killed in terror attack: Again in Pampore; again despite alert from IGP Kashmir

On almost all the attacks on convoys, Police, forces had been alerted; STATE TIMES predicted the strikes on the highway

Ahmed Ali Fayyaz

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JAMMU, Dec 17: In the evening on December 8, 2015, union Home Minister Rajnath Singh called Director General of Central Reserve Police Force (CRPF) Prakash Mishra to greet him over the news that two of three militants, who had attacked a paramilitary convoy at Green Tunnel Bijbehara a day before and left six personnel injured, had been gunned down at Sempora — the border point of Srinagar and Pulwama districts on Srinagar-Jammu highway, on outskirts of Srinagar. Minutes before that, Mishra, on way from Anantnag to Srinagar, had crossed the same point, around 300 yards from the magnificent and imposing EDI complex.

On a tip-off, Police and security forces had laid an ambush at Sempora and started checking of all incoming vehicles. Two Lashkar-e-Tayyiba militants travelling in a load-carrier jumped out and attempted to escape while firing but were both shot dead in retaliation. The civilian driver, hired in Pulwama, survived. The militants were virtually chasing the CRPF DG. That was the beginning of a series of attacks and encounters on the highway, perceived to be free of militants for years.

The seventh attack in the chain, on Saturday, at Pampore, 2 Km from Sempora, in just 12 months, has exposed a many chinks in the armour of the Police and security forces in Kashmir. It left three soldiers dead and one more injured.

In the afternoon on Friday, a communication from IGP Kashmir Syed Javaid Mujtaba Gillani to all the senior Police and security forces officer operating in South Kashmir had asked them to take “all necessary precautions” as the militants, according to a credible information, were likely to attack a patrol or convoy of security forces in “a major town” on the highway. Evidently, it was as usual ignored and taken without any sense of seriousness by the field officers.

Significantly, on December 11, STATE TIMES had published that Hizbul Mujahideen’s so-called Highway Squad was planning a major strike on the highway somewhere between Khannabal and Qazigund. They just changed the venue and went ahead with their strike without regard to the red alert that had been sounded on the highway.

Even when the most audacious terror strike was carried out by militants of Lashkar-e-Tayyiba at Pampore, 1 Km from Sempora, on June 25 this year, STATE TIMES had on the same day published a detailed story, reporting that the militants were planning a major attack on security forces around Srinagar. Officers in Police and security forces as usual ignored it. On the same day, a group of three suicide bombers attacked a CRPF convoy at Frestbal, Pampore, and left 8 soldiers dead. Twenty-one more sustained injuries. Sources insist that the fidayeen attack occurred despite a red alert.

Situated in a high security zone between headquarters of Army’s 15 Corps and the ace counterinsurgency division Victor Force, Sempora-Pampore belt was in fact chosen for almost all the major terror strikes on the highway — except that of the June 3 attack on a convoy in which three BSF men were killed and 6 left injured in Chief Minister’s hometown of Bijbehara. On June 4, militants also gunned down two Police personnel, including an Assistant Sub Inspector of Police, on Khannabal-Pahalgam Road at the South Kashmir district headquarters of Anantnag.

Two attacks on the Entrepreneurship Development Institute (EDI) on February 20, 2016, and October 10, 2016, left the key training and capacity building centre for the Kashmiri youths devastated. In one of his unusually terse reactions, former Chief Minister Omar Abdullah tweeted that the militants were the saboteurs of the careers of Kashmir’s educated and unemployed youths.

The first fidayeen attack in February, 2016, damaged EDI’s four-storey administrative complex extensively. The nine fatal casualties in the three-day-long gunfight included two Majors and a soldier of Special Force, two CRPF personnel, a temporarily engaged gardener besides three Pakistani militants of LeT. Those evacuated by Police and security forces included Hizbul Mujahideen supremo Syed Salahuddin’s son, working as a junior IT manager with EDI.

In the second fidayeen attack in October, the militants failed to cause any fatal casualty to Police or security forces but kept themselves holed up and alive for 56 hours. Finally troops stormed the devastated 9-storey hostel block and killed both the militants.

END

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Terror attacks/ encounters in Kashmir valley on Srinagar-Jammu highway

Dec 07, 2015   

Green Tunnel, Bijbehara     

6 CRPF men injured

Dec 08, 2015

Sempora, Srinagar outskirts         

2 militants killed; 2 CRPF men, 2 civilians injured

Feb 20, 2016   

EDI Complex, Sempora

3 Armymen, 2 CRPF personnel, 3 militants, 1 civilian killed; 13 injured

Jun 03, 2016   

Bijbehara, Anantnag  

3 BSF personel killed

June 25, 2016 

Pampore

8 CRPF men killed, 21 injured

Oct 10, 2016

EDI Complex, Sempora

2 militants killed

Dec 17, 2016

Pampore

3 soldiers killed, one injured

END

[Published in today's STATE TIMES]