Bhushan Lal Bhat vs State of Jammu and Kashmir and Others

S.K. Gupta, J.—On the demise of Sh. H.S. Ball before serving the complete tenure as Member of the Jammu & Kashmir Legislative

Council, the said seat fell vacant and a casual vacancy became available on 18.2.2000 (AN) in terms of the Bulletin Part-II No: LB/NEW/T-

l/2000/LC dated 21.2,2000. The petitioner came to be nominated as Member of the Jammu & Kashmir Council against the seat fallen vacant on

18.2.2000 by Shri Girish Chandra Saxena, Governor of Jammu & Kashmir State vide notification dated 28.2.2000. For facility of reference, the

notification, is reproduced below:

GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT LAW DEPARTMENT.

........................

The following notification of the Government is hereby published for general information.

NOTIFICATION

JAMMU, THE 28TH FEBRUARY, 20OO.

SRO 30-In exercise of the powers vested in me under Sub-section (6) of Section 50 of the Constitution of Jammu and Kashmir, I, Girish Chandra

Saxena, Governor of Jammu and Kashmir, hereby nominate Shri Bushan Lal Bhat son of Late Shri Sham Lal Bhat, resident of Bajbehara

(Anantnag) Kashmir, as Member of the Legislative Council against the seat fallen vacant on 18th February, 2000.

(Girish Chandra Saxena)

A Bulletin Part-II in respect of nomination of the petitioner- Bushan Lal Bhat, also came to be issued, whereby it was published for general

information relating to Parliamentary and other matters about the nomination of the petitioner as Member of the Jammu & Kashmir Legislative

Council, by the Governor. A retirement list of the Members of Jammu & Kashmir Legislative Council was issued, showing the names of the

members, their nomination, date of notification and the date of retirement. Against the name of the petition, recorded date of retirement is

15.10.2002 in the said list. According to the petitioner, the became nominated Member of Jammu & Kashmir Legislative Council w.e.f. 29.2.2000

for a term of six years which is to expire on 28.2.2006.

The sole grievance of the petitioner is that his term as Member of the Jammu & Kashmir Legislative Council has been wrongly determined as

15.10.2002 and approached the Court seeking its quashment by issuance of a writ of certiorari and further directing the respondents to allow the

petitioner to continue as nominated Member of the Jammu & Kashmir Legislative Council till 28.2.2006.

A detailed reply has been filed by the respondents in their objections to the writ petition. The plea put across by the respondents is that the

petitioner was nominated against a casual vacancy as Member of the Jammu & Kashmir Legislative Council till the remaining term of his

predecessor was to expire on 15.10.2002. This fact was also made known to the petitioner vide communication dated 29.11.2001 alongwith list

showing the term of office of the Member of the Jammu & Kashmir Legislative Council. That the contention raised by the petitioner that he had

been nominated as a MLC for a full term of six years which was to come to an end on 28.2.2006, is baseless and misconceived. Merely because

identity card issued to the petitioner, in so far as the validity shown upto 2006, does not contemplate that his nomination is till that date, thus,

cannot be availed of by the petitioner in view of clear Statutory provisions of Sub-section (2) of Section 156 of The Jammu & Kashmir

Representation of the People Act, 1957 dealing with the term of the petitioner as Member of the Jammu & Kashmir Legislative Council.

I have heard the rival contentions of the parties and perused the record meticulously.

It is not disputed that the petitioner was nominated against a casual vacancy caused due to the death of Sh. H. S. Bali who was originally

nominated as MLC. The term of office of MLC is provided in Section 156 of The Jammu & Kashmir Representation of the People Act, 1957.

The provisions of Section 156 in verbiage are reproduced below:

Term of office of members of the Legislative Council. -

(1) The term of office of a member of the Legislative Council other than a member chosen to fill a casual vacancy, shall be six years but upon the

first constitution of the Council the Governor shall, after consultation with the Election Commission, make by order such provision as he thinks fit

for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of

each class shall retire in every second year thereafter.

(2) A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor's term of office.

Sub-section (2) of Section 156 clearly envisages that a member nominated to fill a casual vacancy is for the remaining term of his predecessor's

term of office.

The petitioner was also apprised by the respondents vide communication dated 29.11.2001 with retirement list of MLC enclosed, that he will

be ceased to be a MLC on the date shown against his name in the list.

In view of clear statutory provisions under The Jammu & Kashmir Representation of the People Act, 1957 and documentary evidence placed

on record showing unambiguous nomination of the petitioner as MLC on account of the death of Sh. H.S. Bali, is only for the remaining term of his

predecessor Sh. H.S. Bali. Petitioner's nomination was against the seat rendered vacant on 18.2.2000, evidently to serve the rest of the period of

his predecessor only till the same is completed. In such circumstances, no fundamental or legally enforceable right of the petitioner has been

violated so as to invoke the writ jurisdiction of this Court. The petitioner has not succeeded to carve out a prima facie case, necessitating the Court

to show its indulgence under Article 226 of the Constitution of India.

In view of the above, I do not find any merit in this petition and is accordingly dismissed at the preliminary stage of admission, alongwith all

connected CMPs.