B L Saraf
Few days back , media reported that the State Cabinet has approved revised package for Kashmiri migrants with some modifications. The proposal was made by the Revenue Department, for enhancement of incentives for the Kashmiri migrants under the Prime Minister’s package for their Return and Rehabilitation. The proposal , as reported, has been forwarded to the Union Ministry of Home affairs for funding . Though it does not completely satisfy the projected demands of the community, yet this is a well come development . Government needs to be congratulated , at least in half .
On going through the report certain disturbing thoughts cross the mind. The Government would have done a great favour to the displaced community if ; one , it had not kept for itself a route open to escape duty by making the implementation of the package conditional on total central funding ; second, the highly untenable and patently unlawful distinction was not made between the sales of the properties of the displaced persons effected prior to and post 1997. There was hardly any justification for creating two different classes among the displaced persons of the same stock, who have suffered similar kind of tragedies created by the similar kind of circumstances , to deprive some families of the incentive. According to the reports, the Revenue Department had woken up to such anomaly and sought to rectify the mistake by abolishing the artificial categorization and recommended to the Cabinet ” To extend the benefit of incentives to those families , who have sold land after coming into force of J& K Migrant Immovable Property( Preservation , Protection and Restraint of Distress Sales ) Act 1997.” ( the Act hereinafter) The Cabinet, however, turned down the proposal explaining, ” Even in the original package the coverage of such families was not envisaged.” So, the families which were compelled by the adverse circumstances to part with their lands in the Valley, after the Act came into force – as indeed were those who sold lands prior to 1997 – are left high and dry, with out a succour. There is no lawful , nor any moral justification for such an exclusion .
This unfortunate distinction calls for a closer look at the aims and objects of the Act and other relevant laws. One can’t be sure whether this undesirable classification would stand a judicial test , should any affected person go for it. If the proposal goes as recommended by the State Government , most certainly, doors for such an eventuality stand opened up . But then we will have to impress upon the quarters concerned in the Union Home Ministry to see the absurdity of the distinction , correct the course and make PM’s package truly humane and smooth for desired working on the ground .No moral code permits taking advantage of some one who is in distress . Exploitation of a person during his sufferings is anathema to all the cannons of law . Catalogue of laws , including the Act , could be referred to stress the argument.The Act, therefore, is not special on the point . Viewed from all angles , these enactments have a benign design to keep the unscrupulous elements at a bay from prying on a helpless sufferer . In this background, we will be doing a great violence to purpose of the Act if it is made a monster for some whose sufferings are unending from 1990, like those migrants who have sold their lands before 1997. So , a law which is benevolent in sum and substance for the whole community cannot be made a curse for some sections of the intended beneficiaries .It can’t be a perpetuation of distress for some and relief for others,whileas the profound aim of the act is to remove the distress of all.
If the proposal of the Government is as it stands mentioned in the media reports , then it amounts to say that that after the promulgation of the Act all sales made by the needy migrants are unlawful , So , whoever has done it he is made to pay for his actions. Or ,does the Government want to convey an impression that after 1997 the sufferings of those migrants have come to an end , who have, per force of circumstances, sold their lands after the commencement of the Act and all has become honky dory for them. Both these assumptions are grossly erroneous. The Act does not bar alienations. It could not do so . Enjoyment of property is a fundamental right of a citizen . It has , only, put in place some safeguards for protection of a helpless migrant from being exploited by the land sharks, swimming in murky waters here and there .
(The author is former Principal District & Sessions Judge)
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