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Judgment
The petitioner is aggrieved of the order issued by the Additional District Development Commissioner, Budgam-respondent no. 5 vide his NO. ADDC/BUD/MCS/2519-22 dated 18.02.2019, whereby, 20th February, 2019 has been fixed as the date for convening a meeting of elected councillors of Municipal Committee, Magam for taking up no-confidence motion against the petitioner and election of new President.
Briefly stated the facts projected in this petition are that the petitioner came to be elected as councillor of Municipal Committee, Magam in the recently held elections of the Urban Local Bodies and the certificate of the election in terms of Rule 27 of the Municipal Election Rules 2003 was issued by the competent authority on 01.10.2018 which is appended with the petition as Annexure-III.
Pursuant to the elections of Municipal Councillors, petitioner came to be elected as President (un-opposed) of the said Municipal Committee which is apparent from the order of Executive Officer Municipal Committee, Magamissued vide his No. MC/M/Elections/2018-19/1313-18 dated 13-11-2018.
It is submitted that the Vice President of the Municipal Committee i.e. respondent no. 7 hatched a conspiracy with some councillors to remove the petitioner as President of the Municipal Council. Some communication came to be addressed to higher authorities i.e. Divisional Commissioner, Kashmir and Deputy Commissioner, Budgam in this regard. Having failed to persuade the aforesaid authorities, the respondents 7 to 10 filed a petition in this Court bearing OWP No. 116/2019 in which this Court on the first hearing disposed of the writ petition vide its order dated 11.02.2019 by providing as under:
"...In view of the admissions made by learned counsel for the petitioners and the nature of reliefs sought for, this writ petition is disposed of at the threshold by providing that respondent no. 3, who is seized of the representation of the petitioners , shall take a final decision thereon in accordance with Jammu and Kashmir Municipal Act, 2000 and the rules made thereunder and ensure that Municipal Committee Magam is headed by a duly elected President, who enjoys the confidence of the majority. Let appropriate decision in the matter be taken by the respondent no. 3 in this behalf within a period of six weeks from the date of certified copy of this order is made available to him".
It appears that in compliance to the directions passed by this Court and also taking note of the grievance of the respondents 7 to 11, the respondent no. 5 has issued impugned order and fixed the date for convening of meeting of councillors of Municipal Committee, Magamfortaking upno-confidence motion and electing the new President of the Municipal Committee.
Learned counsel for the petitioner submits that relevant provisions of the Jammu and Kashmir Municipal Act, 2000 were not brought to the notice of the Court when this Court passed the order dated 11.02.2019 passed in OWP No.116/2019. Learned counsel for the petitioner invites the attention of this Court to provisions of Section 25 (4) which unequivocally provide that no-confidence motion for President or Vice President of the Municipal Council/Municipal Committee as the case may be is not maintainable within one year of the date of his election to such office. For facility of reference, Section 25(4) of the Jammu and Kashmir Municipal Act, 2000 is reproduced as under:
"...(4). Motion of no-confidence under this section shall not be maintainable within one year of the date of his election to such office and any subsequent. Motion of no- confidence shall not be maintainable within the interval of one year of the last motion of no-confidence".
From the perusal of Section 25 in its entirety, it is clear that the motion for no-confidence cannot be moved within one year of the election.
Admittedly, in the instant case petitioner came to be elected as President of Municipal Committee, Magam on 13th November, 2018 and therefore, motion for no-confidence cannot be entertained before 13th November, 2019.
I have considered the submissions made by learned counsel for the petitioner and perused the record. It is true that at the time this Court passed the order dated 11.02.2019 in OWP No. 116/2019, the relevant provisions of the Municipal Act, 2000 were not brought to the notice of the Court either by the petitioner or by the learned counsel for the State. Be that as it may, this Court had only directed the respondent no. 4 herein to consider the representation of the petitioners and take final decision in accordance with Jammu and Kashmir Municipal Act, 2000. It would be thus clear that respondent no. 4 was also supposed to follow the Provisions of Municipal Act, 2000 which include provision of section 25(4) as well.
In that view of the matter, motion for no-confidence is apparently not maintainable within one year from the date of the election of the petitioner as President. Prima facie, case is made out for indulgence at this stage.
Notice returnable within four weeks.
Notice in the IA as well returnable within the same period.
List on 27th March, 2019.
In the meanwhile, subject to objections and till next date of hearing before the Bench, the order impugned No. ADDC.BUD/MCS/2519-22 dated 18.02.2019 is stayed and any proceedings taken in pursuance thereto shall not be acted upon.
Copy of this order be given to learned counsel for the petitioner under the seal and signature of the Bench Secretary.