Basharat Bin Qadir vs Union Territory Of Jk And Ors

This application, for the reasons stated and grounds urged therein, is allowed by providing that the applicant/ petitioner shall make good the deficiency of annexing the requisite Court fee, stamp papers, notarization, etc. immediately upon removal of restrictions on account of the outbreak of COVID-19 Pandemic.

CM disposed of as above.

With the appearance of Mr S. R. Hussain, the learned counsel for the respondents 5 to 14/ Caveators, Caveat No.551/2021, as lodged, shall stand discharged accordingly.

The petitioner, who claims to be the Chief Whip of the Indian National Congress in the Srinagar Municipal Corporation nominated as such by the General Secretary, J&K PCC vide communication No. 1406/01-20 dated 6th of January, 2020, is seeking a direction in the name of the respondents 1, 3 and 4 not to allow the respondents 5 to 14 to participate in the elections for the Committees notified vide meeting notices dated 6th of April, 2021 and 8th of April, 2021 issued by the respondent No.4. Besides, the petitioner is also seeking a direction prohibiting the respondents 5 to 14 from participating in any proceedings of the Srinagar Municipal Corporation, including the 13th General Council meeting scheduled for the 17th day of April, 2021. Further, a direction is also sought upon the respondent No.2 for deciding the reference/ application filed by the petitioner with regard to disqualification of the respondents 5 to 14 from the membership of the Srinagar Municipal Corporation within a time bound manner.

Mr Shuja-ul-Haq Tantray, the learned counsel for the petitioner, submitted that the respondents 5 to 14, having gone against the Whip issued by the petitioner, Chief Whip of the party concerned, qua participation in the elections of Mayor, have lost their status as Councillors with the application of the Scheme as provided in the Jammu and Kashmir Municipal Act, 2000. It is further submitted that by the application of Section 34(A) of the Act, these Councillors have attained disqualification on the ground of defection by voting contrary to any direction having been taken by the political party to which they belong. It is pleaded that although the decision on the question of disqualification of respondents 5 to 14 on account of defection is pending before the respondent No.2/Chief Electoral Officer, J&K since December, 2020, yet there is no progress shown in the matter by the respondent No.2 in the said proceedings. It is contended that the mandate of Section 34(A) of the Act makes it axiomatic that the respondents 5 to 14 have attained disqualification on account of having voted contrary to the party Whip, therefore, there is no question of their participating in any further proceedings pending decision in the defection reference. Mr Shuja argues that the petitioner made strenuous efforts to have the defection reference against the respondents 5 to 14 decided before the respondent No.2, but since there was no progress in the said proceedings, the petitioner was compelled to knock at the portals of this Court for the relief claimed.

Mr S. R. Hussain, the learned counsel representing the respondents 5 to 14, submitted that the provisions of the Act of 2000 qua application of Section 34(A) is not available in the case of respondents 5 to 14 as their action is protected under Section 34 (BB) of the Act which has been inserted in the Act in the shape of amendment. It is further submitted that mere allegation of defection by the petitioner, either before this Court or before the election authority, is not sufficient to restrain the respondents 5 to 14 in participating in any proceedings of the Srinagar Municipal Corporation, coupled with the fact that such allegation is subject to decision before the competent authority in terms of Section 34(C) of the Act. It is, in this behalf, contended that there thus is no scope for the petitioner to maintain this petition before this Court under Article 226 of the Constitution of India. Mr Hussain has also vehemently denied the contention of the petitioner that the proceedings before the respondent No.2 have not yielded any progress by stating that the parties are contesting the case before the respondent No.2 in accordance with the mandate of the Scheme of law governing the subject.

Mr Moomin Khan, the learned counsel for the respondents 2 to 4, has questioned the maintainability of this Writ petition on the ground that no right has accrued to the petitioner which would warrant him to file the instant petition before this Court for the relief claimed therein. It is submitted that the petitioner, by no stretch of imagination, can seek the relief of restraining these Corporators who have not lost their status as Corporators in terms of Section 34(A) read with Section 34(C) of the Act, moreso, when the process of their disqualification qua defection is still pending before the competent forum. Mr Moomin, while inviting the attention of the Court to the objections filed by the counsel for the present petitioner in WP(C) No. 1044/2020 on behalf of respondents 7 to 9 therein, wherein a stand has been taken that unless the competent forum does not decide or return its findings with regard to the question of disqualification of member of the Corporation, he/ she cannot be divested/ precluded from exercising his/ her powers/ discharging functions as an elected Corporator. Copy of the objections, so produced by the learned counsel, are taken on record.

Heard learned counsel for the parties, perused the pleadings on record and considered the matter.

The scheme of law in terms of which the respondents 5 to 14 have been elected as Corporators needs no discussion as the same is not disputed before this Court, but, in the present proceedings, this Court is only called upon to answer as to whether these Corporators/ respondents 5 to 14, who are admittedly elected Corporators of the Srinagar Municipal Corporation on the strength of the mandate given by the political party, lose their status to participate in subsequent election proceedings on the ground of the question of their disqualification qua defection being pending before the respondent No.2 under Section 34(C).

Having heard the learned counsel for the parties, coupled with the appreciation of the relevant provisions of the scheme of law, this Court is of the considered opinion that unless and until there is a declaration from the competent authority declaring respondents 5 to 14 disqualified on the ground of defection, no direction can be issued by this Court in exercise of powers under Article 226 of the Constitution restraining the said respondents from participating in any further proceedings of the Srinagar Municipal Corporation. The interpretation of the scheme of law is not warranted because the petition, on its plain reading, has a limited scope where the provisions of the Act are not under challenge so as to test the validity of the same, as such, unless a declaration in tune with the mandate of Section 34(C) is made by the respondent No.2 qua the proceedings of disqualification pending before it to the extent of the respondents 5 to 14, no relief can be granted by this Court. That being so, this Writ petition, being without any merit, shall stand dismissed along with the connected CM. The dismissal of the Writ petition, however, shall not preclude the respondent No.2 from taking the proceedings pending before it qua disqualification of respondents 5 to 14 on account of defection to their logical conclusion expeditiously on merits.