Jammu & Kashmir High Court - Srinagar Bench
Omar Azhar Kakroo vs Ut Of J&K And Ors on 24 March, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 22nd of March, 2021
Announced on; 24th of March, 2021
WP(C) No. 230/2021
CM No. 845/2021
C/w
WP(C) No. 52/2021
CM No. 146/2021
Omar Azhar Kakroo
...Petitioner(s)
Through:
Mr. J. A. Kawoosa, Sr. Advocate with Mr. Areeb Kawoosa, Advocate
vs
UT of J&K and Ors.
...Respondent(s)
Through
Mr. Jahangir Iqbal Ganai, Sr. Advocate with Ms. Humaira Shafi, Advocate
Mr. Rayees-u-Din Ganai, GA
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
JUDGMENT
01. These two writ petitions arising out of similar action of respondents
are proposed to be disposed of by a common order.
02. The decision qua the post of President of Municipal Council,
Baramulla, becoming vacant on account of support of majority of the
Councilors to the No-Confidence Motion against the petitioner and
subsequent decision that the Vice President of the Council will function as
acting President of Municipal Council, Baramulla, till the post of President
is filled up through election process, notified in terms of notification/order
No. MC/Bla/2020/2644-48 dated 09.01.2021, issued by respondent No. 5, is
questioned in the instant petition on the ground as detailed out, with
particular reference that the respondent No. 5, has no power/authority to
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CM No. 845/2021
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WP(C) No. 52/2021
CM No. 146/2021
entertain the No-Confidence Motion, which motion was already withdrawn
by the majority of the Councilors.
03. Mr. Javid Ahmad Kawoosa, learned Senior counsel, while reiterating
the grounds challenging the notification impugned was asked as to what is
the need for filing the writ petition bearing WP(C) No. 230/2021, subsequent
to the instant one, submitted that the impugned action stands withdrawn and
by treating the earlier motion as withdrawn. Subsequent No-Confidence
Motion is processed by the respondent Director, Local Urban Bodies,
Kashmir, Srinagar-respondent No. 4, on the communication dated
21.01.2021, of the respondent No. 5, seeking guidance on the subject, the
respondent No. 4, vide communication dated 09.02.2021, directed the
respondent No. 5, to adopt the course of action in tune with the provisions of
Jammu and Kashmir, Municipal Act, 2000 and as per legal opinion
furnished by Associate Law Officer and the respondent No. 5, acting upon
the instructions of respondent No. 4, entertained the No-Confidence Motion
dated 21.01.2021 and notified the schedule for conduct of special meeting of
the Councilors on 17.02.2021, for discussion for vote of No-Confidence
against the petitioner. Therefore, the petitioner has questioned the
subsequent action of respondents in WP(C) No. 230/2021.
04. In view of statement made by Mr. J. A. Kawoosa, learned senior
counsel, supported by the counsels appearing for the respondents, the writ
petition WP(C) No. 52/2021, being rendered infructuous, as such, shall stand
dismissed, accordingly.
05. The petitioner in petition WP(C) No. 230/2021, has questioned the
instruction, issued by the respondent No. 4, in terms of communication dated
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CM No. 845/2021
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WP(C) No. 52/2021
CM No. 146/2021
09.02.2021, asking the respondent No. 5, to proceed in the matter of No-
Confidence Motion against the petitioner in accordance with the provisions
of J&K, Municipal Act, 2000, and in accordance with the opinion of
Associate Law Officer and the communication bearing No.
MC/Bla/G/2021/2964-66 dated 12.02.2021, in terms whereof the respondent
No. 5, has notified the schedule for discussion of No-Confidence Motion,
against the petitioner on 17.02.2021 as also the communication informing
the President, the schedule, date, time and venue for No-Confidence Motion
against him, on the following grounds;
i. That the so-called No-Confidence Motion allegedly moved against
the petitioner is not maintainable in terms of Section 25 of the Act
reads as under:
25.Motion of no confidence against President or Vice-President.
(1) A motion of no confidence against the President or Vice-
President, may be made in accordance with the procedure laid
down in the rules.
(2) where a notice of intention to move a resolution requiring the
President or Vice-President of the municipality to vacate his office,
signed by not less than majority of its total elected members is
given and if a motion of no-confidence is carried by a resolution
passed by a majority of elected members present and voting at its
general or special meeting, the quorum of which is not less than
one-half of its total elected members, the President or the Vice-
President against whom such resolution is passed shall cease to
hold office Forthwith.
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CM No. 845/2021
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WP(C) No. 52/2021
CM No. 146/2021
(3) Notwithstanding anything contained in this Act or the rules
made thereunder the President or Vice-President of the
Municipality shall not preside over a meeting in which a motion of
no-confidence is discussed against him. Such meeting shall be
presided over by such a person, and convened in such manner, as
may be prescribed and the persons against whom a motion of no-
confidence is moved, shall have a right to vote and to take part in
the proceedings of such a meeting.
(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.
The so-called No-Confidence Motion allegedly moved against
the petitioner is not maintainable in terms of Section 25(4) of the
Act is a mandatory provision and makes it clear that any
subsequent motion of No-Confidence shall not be maintainable
within the interval of one year of the last motion of No-
Confidence. The earlier No-Confidence Motion being moved on
28.11.2020, and withdrawn on 09.01.2021, a new motion of No-
Confidence could not have been moved for a period of one year.
As such, the impugned communications issued by the respondents
4 and 5 being ultra-vires the statutory law.
ii. That the procedure adopted by the respondent No. 5, is illegal and
ultra-vires the statutory law on the point. It is submitted that the
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WP(C) No. 52/2021
CM No. 146/2021
Executive Officer has no power or authority to convene a meeting
of the Municipal Council or Municipal Committee. In fact it is the
President of Municipal Council or Municipal Committee who has
the power to admit a resolution for a particular meeting and has the
power to convene any general or special meeting of the Municipal
Council.
iii. That after the order dated 15.01.2021, passed by this Hon'ble
Court, was served upon the respondents, the petitioner came to
know that a fresh No-Confidence Motion has been moved against
him. It is stated that the so-called fresh No-Confidence Motion
allegedly moved against the petitioner does not even bear any date
however, petitioner was informed by the respondent No. 5 that the
said motion has been moved on 21.01.2021. Furthermore the so-
called No-Confidence Motion allegedly moved against the
petitioner which has been shown to be signed by 10 Councilors is
fake and forged. The signatures of some of the councilors have
been forged on the said resolution for No-Confidence since the
signatures of those councilors do not match with the signatures put
on the earlier No-Confidence motion was withdrawn.
iv. That the respondent No. 4, issued the impugned communication
dated 09.02.2021, whereby he forwarded the legal opinion
furnished by Associate Law Officer, Directorate of Urban Local
Bodies, Kashmir further course of action in the matter as per J&K
Municipal Act, 2000. The ALO concerned has opined that the
Hon'ble Court has only stayed the communication bearing No.
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CM No. 845/2021
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WP(C) No. 52/2021
CM No. 146/2021
MC/Bla/2020/2644-48 dated 09.01.2021, and has not debarred
from conducting fresh No-Confidence Motion and halting
democratic process. It is further opined by the ALO that the
concerned Executive Officer, viz respondent No. 5 herein be
directed to withdraw the communication bearing No.
MC/Bla/2020/2644-48 dated 09.01.2021 and to proceed afresh for
conducting No-Confidence as per Municipal Act. It is submitted
that the ALO concerned has opined that communication dated
09.01.2021, impugned by the petitioner in writ petition bearing
WP(C) No. 52/2021 and stayed by this Hon'ble Court vide order
dated 15.01.2021, be withdrawn so as to ensure that the said writ
petition filed by the petitioner becomes infructuous.
v. That the respondent No. 5, has submitted the impugned report to
the respondent No. 4, who has no authority or jurisdiction over the
matter either under the Jammu and Kashmir Municipal Act, 2000
or under the Rules and Regulations made thereunder. Hence the
entire proceeding from its inception to its culmination is without
jurisdiction and as such nullity in the eyes of law.
06. On notice respondents have filed objections, wherein it is stated that
the case of the petitioner essentially hinges on the ground that the notice of
No-Confidence Motion moved by the answering respondents on 21.01.2021,
and thereto in conduct of the special meeting, is hit by Section 25(4) of the
Municipal Act. It is a case of the petitioner that it is so for the reason that a
No-Confidence Motion was already moved against the petitioner on
28.11.2020 and withdrawn on 09.01.2021, as such, a new motion could not
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CM No. 146/2021
have been moved for a period of one year. It is stated that the contention so
raised is legally misconceived. The bar placed under Section 25(4) of
Municipal Act is available only in case a valid No-Confidence Motion is put
to vote and thereto is given effect. The mandate of Section 25(4) of
Municipal Act cannot be read in isolation and has to be read in conjunction
with mandate of Section 25(2) of Municipal Act. It being so, as the No-
Confidence Motion dated 28.11.2020, was withdrawn on 09.01.2021 and
thereto the result of the No-Confidence Motion, was not given effect to, in
compliance to Court order dated 15.01.2021 as passed by this Hon'ble Court
in a petition filed by the petitioner, registered as WP(C) No. 52/2021, in law
no valid No-Confidence Motion can be held to have been made as against
the petitioner on 28.11.2020, so as to render the No-Confidence Motion
dated 21.01.2021, hit by Section 24(4) of Municipal Act. As a matter of fact
it is the case of the petitioner in the writ petition supra that No-Confidence
Motion dated 28.11.2020, on account of it having been withdrawn, could not
have been put to vote.
07. It is further averred in the objections that the Executive Officer has the
powers, competence and jurisdiction to convene a special meeting. The
President has no such power to admit a resolution requiring the President to
vacate his office. The impugned communications dated 09.02.2021 and
12.02.2021 are valid and in accordance with law. The Hon'ble High Court
has only stayed the communication dated 09.01.2021 and not that of any
legal process, available in law to that of the answering respondent for
seeking consideration of a resolution. The impugned process has been
initiated in accordance with law and to give effect to the mandate, vested in
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law to the answering respondent, on being duly elected as the Councilors of
Municipal Council, Baramulla. The motion was moved by the answering
respondents on 21.01.2021. The signatures on the motion are not fake or
forged.
08. It is stated in the objections by the respondents that petitioner has tried
to mislead this Hon'ble Court. It is further stated that a communication dated
19.01.2021, was addressed by the respondent No. 5, to that of respondent
No. 4, prior to the No-Confidence Motion moved by the answering
respondents on 21.01.2021. The instructions sought by the respondent No. 5,
in terms of communication dated 19.01.2021, are in light of the order passed
by the Hon'ble High Court in the writ petition, filed by the petitioner
registered as WP(C) No. 52/2020. It is further stated that it is only after that
the receipt of the No-Confidence Motion moved by the answering
respondent on 21.01.2021, the respondent No. 5, in terms of communication
dated 21.01.2021, was pleased to seek legal opinion from respondent No. 4,
with regard to convening of a special meeting of elected members viz
conduct of floor test thereof.
09. Mr. J. A. Kawoosa, learned senior counsel appearing for the petitioner
while reiterating the grounds of challenge submits that there is no scope for
the respondents 4 and 5, to entertain the No-Confidence Motion, which will
be second in turn in view of the power contained in Sub Section (4) of
Section 25 of Jammu and Kashmir Municipal Act, 2000, wherein the motion
of No-Confidence under Section 25 shall not be maintainable within interval
of one year and subsequent No-Confidence Motion shall not be maintainable
within the interval of one year of the last motion of No-confidence. Learned
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CM No. 146/2021
senior counsel submits that first No-Confidence Motion dated 28.11.2020,
against the petitioner stands settled on 09.01.2021, when 10 elected
Councilors withdrew No-Confidence Motion by notification dated
09.01.2021 of the respondent No. 5, therefore, by application of Sub Section
(4) of Section 25, the term of interval of one year is yet to expire and the last
motion of No-Confidence is also yet to expire, which shall be counted from
the date of withdrawal and subsequent notification dated 09.01.2021.
10. Mr. J. A. Kawoosa, learned senior counsel while reiterating the
grounds of challenge against the action impugned, has questioned the power
of respondent No. 5, by application of the provisions of J&K Municipal Act,
2000 and J&K, Municipality (Procedure For Conduct of Meetings) Bye-
Laws, 2005. The attention in this connection is invited to Section 10 of the
Jammu and Kashmir Municipal Act, 2000, which provides for composition
of Municipalities and proviso of Sub Section 3, makes reference that the
Executive Officer in the case of a Municipal council and Municipal
Committee, shall have the right to attend all the meetings of the
municipality. Further explaining Mr. J. A. Kawoosa, learned senior counsel
submits that the motion of No-Confidence against the President and Vice
President of the Municipal Council is required to be made in accordance
with procedure laid down in the rules and the procedure as per laid down the
procedure for conducting the meetings, it is only the President who convene
meetings of the Municipal Council or Municipal Committee by general or
special order passed in that behalf. Learned senior counsel further submits
that there is no provision in the Municipal Council Act or Bye-laws, which
empowers the respondent No. 5 to notify the date, time and schedule for
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floor test of the No-Confidence Motion of the council. Therefore, the action
being without jurisdiction is ab-initio bad in law.
11. Mr. Jahangir Iqbal Ganai, learned senior counsel submits that in terms
of proviso 6 of the J&K Municipality (Procedure For Conduct of Meetings)
Bye-Laws , 2005, the respondent No. 5 is the authority to ensure election of
President and Vice President and in same manner, he exercises the power to
regulate the No-Confidence Motion against the President and Vice President
for its floor test in the council. Learned senior counsel further submits that
by no stretch of imagination the proposition as submitted by Mr. J. A.
Kawoosa, learned senior counsel can be accepted that the respondent No. 5,
has no power that the Government has not notified any officer for regulating
the business and conducting the floor test of the No-Confidence in the
provisional Act.
12. Heard learned counsel for the parties, perused the records and
considered the matter.
13. Admittedly, the No-Confidence Motion moved against the petitioner
on its subsequent withdrawal cannot be termed as having failed by deciding
the same on the floor of the council, therefore, the withdrawal will not have
any effect on the Motion of No-Confidence, moved against the petitioner by
the majority of the Councilors, which is processed for floor test in
accordance with law. The contention raised by Mr. J. A. Kawoosa, learned
senior counsel in the writ petition with the support of arguments and supply
of law, if accepted will render the whole scheme of law qua subject of No-
Confidence against the President and Vice President as redundant.
Therefore, being misconceived, shall stand rejected.
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14. Perusal of the J&K Municipality (Procedure For Conduct of
Meetings) Bye-Laws, 2005 read with General Clauses Act, leaves no doubt
in the mind of the Court in accepting the contention of Mr. Jahangir Iqbal
Ganai, learned senior counsel that the procedure adopted is in tune with the
law, therefore, the spirit of ensuring democratically provided right of
exercising vote by No-Confidence motion for floor test is in accordance with
law.
15. In view of the above background, the writ petition being without
merit, shall stand dismissed along with connected CM(s).
16. Pendency of the writ petition and the interim orders may have become
the impediment for the respondent No. 5, to carry the motion to its logical
conclusion, however, with the dismissal of the writ petitions, the respondent
No. 5, shall now be free to proceed in the matter in accordance with law.
Registry to place copy of this order on each of the file.
``
(Ali Mohammad Magrey)
Judge
Srinagar:
24.03.2021
"Mohammad Yasin Dar"
i. Whether the Order is reportable? Yes/No.
ii. Whether the Order is speaking? Yes/No.
MOHAMMAD YASIN DAR
2021.03.24 16:28
I attest to the accuracy and
integrity of this document
