Basharat Bin Qadir vs Union Territory Of Jk & Ors
2021 Latest Caselaw 441 j&K/2

                                                                                   Serial No. 132
                                                                                Supplementary-2 List

                               HIGH COURT OF JAMMU AND KASHMIR
                                         AT SRINAGAR

                                           {Through Virtual Mode}

                                                                    Dated: 16th of April, 2021.


           Basharat Bin Qadir
                                                                            ... Petitioner(s)
                                     Through:
                                     Mr Shuja-ul-Haq Tantray, Advocate.

                                                   Versus
           Union Territory of JK & Ors.
                                                                          ... Respondent(s)

Through:

Mr Mohammad Rais-ud-Din Ganai, GA for R-1;

Mr Moomin Khan, Advocate for R-2 to 4; and Mr S. R. Hussain, Advocate with Ms Tabeer Riyaz, Advocate for R-5 to 14.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

CM No.2268/2021:

01. 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.

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document

WP(C) No.767/2021;

CM Nos. 2268/2021 & 2269/2021

02. CM disposed of as above.

WP(C) No. 767/2021; CM No. 2269/2021 & Caveat No.551/2021:

03. 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.

04. 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.

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document

WP(C) No.767/2021;

CM Nos. 2268/2021 & 2269/2021

05. 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.

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document

WP(C) No.767/2021;

CM Nos. 2268/2021 & 2269/2021

06. 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.

07. 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

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document

WP(C) No.767/2021;

CM Nos. 2268/2021 & 2269/2021

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.

08. Heard learned counsel for the parties, perused the pleadings on

record and considered the matter.

09. 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).

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document

WP(C) No.767/2021;

CM Nos. 2268/2021 & 2269/2021

10. 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.

(Ali Mohammad Magrey) Judge SRINAGAR April 16th, 2021 "TAHIR"

i. Whether the Judgment is reportable? Yes/ No. ii. Whether the Judgment is speaking? Yes/ No.

TAHIR MANZOOR BHAT 2021.04.19 11:34 I attest to the accuracy and integrity of this document