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Judgment
Nisar Ahmad Kakru, J.—Notification in exercise of powers conferred by Sub-section 2 of Section 4 of the Ladakh Autonomous Hill
Development Council Act 1997 (for short Act) issued on 28-10-2004 by the Government in the name of the Governor nominating four persons as
members of Ladakh Autonomous Hill Development Council Kargil (for short council) is questioned on the ground that the above said provision
casts an obligation upon the respondents to nominate a sunni muslim to the council because sunnies at Kargil are in minority as compared to Shias
and Budhists and fall within the ambit of expression 'principal religious minority' used in Sub-section 2 of Section 4 of the Act which reads:
The Government may nominate not more than four persons amongst the religious minorities and women in the district to be member of the
council.
Admittedly the expression 'principal religious minority' is not defined in the Act, therefore, it has to be understood in its grammatical meaning
which would mean the fundamental and primary religion. The primary religion of sunni and shia sects of muslims being Islam, therefore, both the
sects are its constituents and together they form a single minority within the expression of 'principal religious minority'. The classification urged by
the learned counsel for the petitioners, if accepted, no wonder that all the four sub sects of sunni muslims namely Hanfi, Maliki, Hambli and Shaafi
may raise similar voices and claim a minority status qua each other. Needless to say that any interpretation other than the one aforementioned, if
allowed to hold good, absurdity will be the fall out. Viewed thus contention does not stand the test of rationality. Learned counsel for the
petitioners has made reference to Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and Others, ; The Commissioner, Hindu
Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., & St. Stephen's College etc., etc. Vs. The University of
Delhi Etc., Etc., but, in my opinion, mandate of none of these judgements is attracted in the case on hand. In this backdrop, interference with the
impugned SRO is declined yet. I choose to keep it alive because if the allegations of contempt are substantiated, the court may have to consider
restoration of status quo ante to relegate the parties to the position that existed prior to issuance of notification impugned.
CONT. 264/04:
There are allegations against the respondent No. 5, Deputy Commissioner, Kargil (for short DC) of having flouted the orders of the court with
impunity. In this behalf it needs to be noticed that on 19-11-2004, a direction came to be passed requiring him not to act upon the impugned
nomination which direction, according to the averments made in the contempt petition, was served on the said respondent on 22-11-2004 at
10.30 AM against a receipt obtained from Senior Assistant of his office forming annexure C2 to the contempt petition. The order is also said to
have been facsimiled to the DC at 11.2 AM on the same date i.e. 22-11-2004 (see annexure C3 to the contempt petition). The averments of
contumacy are supported by affidavits sworn in by 12 councillors besides other documents. It has also been specifically averred that the DC had
categorically refused to comply with the orders of the court. It is pertinent to mention that Mr. Magray, Ld. AAG produced, on his own, a Xerox
copy of the record to canvass that the Law Minister having taken a serious view of the alleged violation of the orders resulted in seeking an
explanation from the DC but as per report received from the later, he had no knowledge about direction of the court. The law abiding approach of
the Law Minister is appreciable but does it help the DC, certainly not. It goes without saying that no authority, howsoever high or exalted it may
be, can assume unto himself the power of judging the correctness or validity of an order of any court, unless modified by any competent forum. I
may hasten to add that I am not returning a finding of contumacy. Nevertheless a prima facie inference being deducible from the material produced,
the DC owes an explanation to the court. Let a notice go to him returnable within ten days to be served through Process Serving Agency of the
Chief Judicial Magistrate Kargil requiring him to show cause as to why he should not be proceeded against for contempt of court.
In view of the interpretation of expression 'principal religious minority', the interim direction calls for modification. Accordingly respondents are
allowed to act upon SRO 371 subject to the condition that all the events which have occurred subsequent to the passing of the interim direction
dated 19-11-2004 shall abide by outcome of contempt petition. Be listed week following next. Writ record to be kept along.