Mohd. Haneefa Jan vs State of J. and K.

Tashi Rabstan, J. - Quashment of SRO 228 of 2016 dated 05.07.2016 issued by respondent No. 1 is sought by petitioners. It (SRO 228 of

2016) provides holding of election of Chairman, LAHDC, Kargil on 18th July, 2016. Petitioners exhort vouchsafe of direction to respondents to

hold Floor Test for the post of Chairman/Chief Executive Councillor of Ladakh Autonomous Hill Development Council, Kargil. They also seek a

direction in the name of respondent No.3 restrained him from ceasing or interfering in the powers of Chairman, Ladakh Autonomous Hill

Development Council on the edifice of case set up in writ petition.

The succinct factual background tailored in writ petition is that election for constitution of Ladakh Autonomous Hill Development Council, Kargil

(hereinafter referred to as 'LAHDC') was conducted in the year 2013 and the total number of seats in the Council to be filled amongst the persons

chosen by direct election shall be 26. The Government may nominate 04 persons from amongst the principal religious minorities and women in the

district to be members of the Council. The sitting members of the Legislative Assembly of the State of Jammu and Kashmir and the sitting members

of the House of the People representing the Assembly or the Parliamentary Constituency, as the case may be, in which the district is situated shall

be ex officio members of the Council constituted for the district. Thus, in total the Council comprises of 30 members. Pursuant to the elections

conducted in the year 2013, respondent No. 1 vide Notification dated 02.09.2013 notified and published the names of the elected members of the

LAHDC, who thereafter while exercising the powers conferred under sub-section (2) of the Section 4 of the Ladakh Autonomous Hill

Development Council Act, 1997 (hereinafter referred to as the 'LAHDC Act') nominated 04 persons as Members of LAHDC, Kargil vide

Notification dated 04.09.2013. The Chairman of the Council was to be elected amongst the elected members of the Council under Section 25(1)

of the LAHDC Act, which is defined as Chief Executive Councillor in terms of Section 29(1) (a) of the Act of 1997. It is contended that after

election of members' of the Council, the election for the post of Chairman/Chief Executive Councillor was also conducted, in which Shri Asgar Ali

Karbalai (INC) was elected as Chief Executive Councillor/Chairman of LAHDC, Kargil. Thereafter, pursuant to the Assembly Elections, Shri

Asgar Ali Karbalai, was elected as MLA from Kargil constituency and consequently, he resigned from his designation as Chairman/CEC LAHDC

Kargil.

It is contended that in the month of April, 2015, members of the Council under minority, i.e., lead by National Conference party along with 03

Independent candidates and 04 nominated candidates represented to respondent No.3 for conducting election to the post of Chairman/CEC for

the reasons that vacancy had accrued to the said position on account of resignation of Shri Asgar Ali Karbalai. Accordingly, elections were

conducted and one of members of the majority group, namely, Mohd. Haneefa - petitioner herein, was elected as a Chairman/CEC for LAHDC

Kargil on 13.04.2015. It is averred that in the month of June, 2016 one independent candidate, namely' Shri Kacho Ali Ahmed Khan, who had

earlier supported the majority members of the Council, withdrew his support. On such withdrawal, a resolution was made by total 15 Councillors,

of which 10 were representing Indian National Congress and 5 were independent Councillors, for dissolution of present Council with the plea that

the majority members representing the, Council have been reduced to minority and on the said representation, respondent No. 3 issued Circular

dated 30th June, 2016 by referring the issue to the Government-respondent No. 1 to enable the members of the Council led by National

Conference to prove the majority on the Floor of the Council. Petitioners represented to respondent No.3 and reiterated not to disrupt functioning

of LAHDC Kargil merely on the resolution of minority group and requested that Chairman has neither been removed by the resolution carried by

majority nor has any vacancy in the office of Chairman occurred. It is contended that respondent No.3 has misunderstood the provisions of Rules

94 and 95 of LAHDC Rules, 1995. Rule 94 pertains to the procedure for ejections of Chairman whereas Rule 95 pertains to the election to the

post of Chairman in case of vacancy occurred on account of death, resignation or removal in terms of Section 27(2) or otherwise. It is contended

that nowhere it contemplates a situation for re-election to the post of Chairman, until the existing Council fails to prove its majority on the Floor of

the Council Learned counsel for petitioners states that respondent No.l has erred in law anti issued impugned SRO 228 dated 05.07.2016 for

conducting of new elections for the post of Chairman and on the basis of said SRO. respondent No.3 has vide order dated 08.07.2016, fixed

election for the post of Chairman on 18.07.2016.

On notice, respondents have filed the reply and resisted the petition contending therein that Notification impugned was revisited anti on

consideration of the matter in its entirety and having regard to the provisions of Jammu and Kashmir Ladakh Autonomous Hill Development

Council (Election) Rules, 1995 anti in terms of Notification No. SRO 242 of 2016 dated 22.07.2016 impugned Notification issued under SRO

228 of 2016 dated 05.07.2016 has been rescinded ab initio, therefore, nothing remains in the writ petition which is required to be adjudicated

upon by this Court. However, it is contended that after withdrawal of the support by independent candidate, namely, Shri Kacho Ahmed Ali

Khan, a requisition made in writing was received by respondent No.3, in terms whereof it was impressed upon that on account of withdrawal of

support by Shri Kacho Ahmad Ali Khan, the Chairman has lost his majority in the Council and in order to give effect to the request so made, a

special meeting of the Council is required to be convened by Chief Executive Officer as required in terms of mandate of sub-section (2) of the

Section 27 of the Act for removal of the Chairman. The Chief Executive Officer, it is insisted, is a prescribed authority for convening meeting for

election of Chairman and thereto the Chief Executive Officer is competent to convene the special meeting for removal of the Chairman. The

contention as such raised by the petitioners do not merit any consideration as the respondents are within their rights to proceed ahead in

accordance with the mandate of Jammu and Kashmir Ladakh Autonomous Hill Development Council Act, 1997 and Rules made thereunder.

Heard learned counsel for the parties and perused the record.

Ladakh Autonomous Hill Development Council, Act, 1997, has come into force for providing establishment of Autonomous Hill Development

Councils and Inter-District Advisory in the Ladakh region of Jammu and Kashmir. Section 3 of the Act provides constitution of Ladakh

Autonomous Hill Development Council. Section 16 of the Act provides that a person shall not be qualified to be member of the Council unless he

is an elector. Chapter IV titles Conduct of Business. Section 25 envisages Chairman of the Council and Section 26 indicates term of office of

Chairman. Section 27 provides resignation and removal of Chairman. It would be appropriate to reproduce Section 27 of the Act hereunder:-

Resignation and removal of Chairman.

(1) The Chairman may at any time resign from his office by giving a notice in writing to the Council and such resignation shall take effect from such

date as may be specified in the notice or if no such date is specified, from the date of receipt by the Council.

(2) The Chairman may be removed from office by a resolution carried by a majority of the total number of members at a special meeting of the

Council called for the purpose upon a requisition made in writing by not less than one-third of such members of the Council.

Learned counsel for the petitioners contends that impugned SRO 228 of 2016 dated 05.07.2016 and order dated 08.07.2016 are in

contravention of Section 27(2) of the Ladakh Autonomous Hill Development Council Act, 1997 (hereinafter referred to as 'Act'). He further

contends that no vacancy has accrued to the post of Chairman and as a matter of fact, petitioner No.1 is still continuing to the post of Chairman,

LAHDC, Kargil. He, therefore, contends that even if it is assumed that petitioners are in minority in Council, the appropriate procedure to be

followed in such a situation is to conduct Floor Test providing an opportunity to the petitioners to prove majority on the Floor of the Council. The

said procedure has time and again been reiterated by the Hon'ble Supreme Court in catena of judgments which includes S.R. Bomai and another

v. UOI, reported in (1994) 3 SCC 1 : (AIR 1994 SC 1918) as also in Rameshwar Prasad and others v. UOI, reported in (2006) 2 SCC 1

: (AIR 2006 SC 980) wherein it was held that Floor Test is the only and the surest way and, the earlier the floor test is done, the chances of horse

trading could be obviated. Learned counsel further contends that impugned SRO and order are in conflict with the law laid down in the above

referred judgments of the Hon'ble Supreme Court of India and also to the LAHDC Act and Rules framed thereunder. The judgment of Uttrakhand

High Court and Supreme Court of India in the case titled Union of India v. Harish Chandra Singh Rawat, reported in 2016 SCC Online

Supreme Court 442, and most recent judgment dated 13th July, 2016 passed by the Supreme Court in Civil Appeal Nos. 6203-6204 of 2016

(arising out of SLP(C) Nos. 1259-1260 of 2016) titled Nabarn Rebia and Bamang Felix v. Deputy Speaker and others, relating to State of

Arunachal Pradesh, also reiterated the principle of conducting the Floor Test. Thus, the SRO and orders impugned directing the conducting of

elections of Chairman, LAHDC, Kargil without Floor Test calling upon the Chairman to prove majority is ultra vires, illegal and arbitrary exercise

of power.

Respondents along with objections have placed on record a copy of order dated 22.07.2016 whereby impugned Notification issued under

SRO 288 dated 05.07.2016 has been rescinded ab initio. Learned counsel, however, contends that after withdrawal of support by independent

candidate, namely, Shri Kacho Ahmed Ali Khan, a requisition made in writing was received by respondent No.3 in terms whereof it was

impressed upon that on account of withdrawal of support by Shri Kacho Ahmad Ali Khan, the Chairman has lost his majority in the Council and in

order to give effect to the request so made, a special meeting of the Council is required to be convened by the Chief Executive Officer as required

in terms of mandate of sub-section (2) of the Section 27 of the Act for removal of the Chairman.

However, learned counsel for petitioners contends that in terms of Section 38 of the Act, the powers of CEO are envisioned under the Act,

whereas Section 28 of the Act describes the power of Chairman wherein it is provided that every meeting of the Council is to be headed by

Chairman. He further contends that sub-section (c) of Section 28 of the Act also contemplates that in case of special resolution also the Chairman

has to preside over the meeting.

For facility of reference, Section 28 of the Act is reproduced here as under:-

Powers, functions and duties of the Chairman.

The Chairman shall-

(a) preside over the meeting of the Council.

(b) Be responsible for the maintenance of the records of the Council.

(c) Exercise such other powers, perform such other functions and discharge such other duties as the Council may, by general or special resolution,

direct.

It is true that in terms of Section 38 of the Act, the powers of CEO are envisioned, whereas Section 28 of the Act describes the power of

Chairman wherein it is provided that every meeting of the Council is to be headed by Chairman. Additionally, sub-section (c) of Section 28 of the

Act also contemplates that in case of special resolution also the Chairman has to preside over the meeting. Thus, the present case squarely falls

within sub-section (c) of the Section 28 of the Act.

Learned counsel for respondents stresses on dismissal of writ petition as according to him since impugned Notification has been rescinded ab

initio, nothing survives in this petition and the same may be dismissed. Per contra, learned counsel for petitioners states that appropriate procedure

to be foil owed in such a situation is to conduct 'Floor Test' providing an opportunity to petitioners to prove majority on the Floor of the Council.

The said procedure has time and again been reiterated by the Hon'ble Supreme Court in catena of judgments which includes S.R. Bomai and

another v. UOI (AIR 1994 SC 1918) and Rameshwar Prasad and others v. UOI (AIR 2006 SC 980) (supra) wherein it was held that

'Floor Test' is the only and the surest way and, the earlier the 'Floor Test' is done, the chances of horse trading could be obviated. Although,

learned counsel for respondents submits that there is no such provision to conduct the 'Floor Test' in the Act and Rules itself, yet the said

contention of learned counsel for respondents pales into insignificance as conducting of 'Floor Test' is now the mandate of law so as to enable the

political parties to prove its/their majority in the House or Council, as the case may be. Therefore, conducting of 'Floor Test' is imperative and sine

quo non in a democratic set up. However, in the Act and Rules, there is no provision for conducting the Floor Test. Be that as it may, the 'Floor

Test' is the sine quo non in a democratic set up enabling the parties to prove its/their majority and to win the confidence of the house.

In the given circumstances, this writ petition is, accordingly, disposed of by providing that the respondents shall proceed in the matter by

holding Floor Test, which is the most fair and surest test to be conducted in these circumstances for election of a candidate in joint majority in the

House or Council, as the case may be, of course, in accordance with law. Respondents shall do well to follow the aforesaid procedure as has been

envisaged by the Hon'ble Supreme Court of India in the recent judgments referred to herein above within a period of four weeks from the date a

copy of this order is served upon them.

Disposed of as above along with connected MP (s).