1. This petition was filed by the petitioner, a practicing lawyer, in public
iii) Declaration:
Declaring the nominations of private respondents no. 6 to 13 as
Members of Jammu and Kashmir Legislative Council illegal,
unconstitutional, unsustainable, null and void.
iv) Quo-Warranto:-
Treating the private respondents no. 6 to 13 as Usurper to the
Constitutional Public Position as they lack eligibility/qualifications
prescribed under Sub Section 6 of Section 50 of the Constitution of
Jammu and Kashmir for such nominations as Members of Jammu
and Kashmir Legislative Council.
v) Mandamus:-
Commanding the official respondents to give due representation to
socially and economically backward classes in the State, which was
the mandate of constitution and intention of legislature.
vi) Any other appropriate writ, command, order or direction, this
Hon'ble Court in the given circumstances of the case may
otherwise deem appropriate in the interest of justice, equity and
law, may also be passed."
2. During the pendency of this petition, the Legislative Council ceased to be
in existence with effect from 31.10.2019 with the enforcement of J&K
Reorganization Act 2019. Section 14 of the J&K Reorganization Act 2019
provides for the Legislative Assembly only for the Union Territory of
Jammu and Kashmir. Besides, the period of nomination of the private
respondents to the Jammu and Kashmir Legislative Council also came to
expire during the pendency of this petition.
3. Taking note of the above mentioned subsequent events and obduracy of
the petitioner for adjudication of the petition on merits, notwithstanding
the factum of the petition having been rendered infructuous, this Court
vide order dated 27.07.2023 observed that the petitioner may submit
before this Court as to whether the issues raised in this petition are alive as
this Court is not expected to undertake any academic exercise, as cause of
action does not survive any longer. Thereafter, the petition came to be
dismissed for non-prosecution vide order dated 28.03.2024, but was
restored vide order dated 29.04.2024.
4. The petitioner has submitted that he has raised vital issues which require
adjudication on merits, irrespective of the fact that J&K Legislative
Council has ceased to be in existence and the term of the nominated
members to the J&K Legislative Council has expired. The petitioner has
relied upon the judgments of the Hon'ble Supreme Court of India in
Sheodan Singh v Mohan Lal Gautam, AIR 1969 SC 1024 and Loknath
Padhan v. Birendra Kumar Sahu, AIR 1974, SC 505.
5. Per contra, Mr. U. K. Jalali, learned Senior Counsel appearing for some of
the private respondents, has argued that this petition has been rendered
infructuous due to subsequent events, therefore, this petition deserves to be
dismissed.
6. Heard and perused the record.
7. This is an admitted fact that as on date, J&K Legislative Council is not in
existence and, also the term of the nominated members (respondent Nos. 6
to 13) to the J&K Legislative Council has expired. Therefore, even if this
petition is adjudicated on merits, it would have no repercussions in future.
This Court has already observed that the issues involved in this petition at
present, are of only academic interest and this Court is not expected to
undertake any academic exercise at the cost of other cases, involving
issues of seminal importance.
8. In Loknath Pathan's case (supra), judgment in case titled Sheodan
Singh v. Mohan Lal Gautam, AIR 1969 SC 1024 , was taken note of and
it was held as under:
"4. The position might be different if the allegation against
the respondent were of corrupt practice. Then it would not
be academic to consider whether or not the respondent was
guilty of the corrupt practice charged against him, because a
finding of corrupt practice has serious consequences. If the
respondent is found guilty of corrupt practice during the
election, not only his election would be declared void, but he
would also incur certain electoral disqualifications. Section
8A provides that a person found guilty of a corrupt practice by an
order under section 99 shall be disqualified for a period of six
years from the date on which, that order takes effect. The purity
of elections is of utmost importance in a democratic set up and
the law has, therefore, taken serious note of practice in elections
and laid down a disqualification for a period of six years on an
order being made by the High Court recording a finding of
corrupt practice at the time of disposing of the election petition.
It is, therefore, obvious that when a corrupt practice is charged
against the respondent in an election petition, the trial of the
election petition must proceed to its logical end and it should be
determined whether the corrupt practice was committed by the
respondent or not., As pointed out by this Court in Sheodhan
Singh v. Mohan Lal "no one can be allowed to corrupt the
course of an election and get away with it either by resigning
his membership or because of the fortuitous circumstance of
the assembly having been dissolved. The public are
interested in seeing that those who had corrupted the course
of an election are dealt with in accordance with law." The
decision of the question whether corrupt practice was committed
by the respondent or not would not, therefore, be academic and
the Court would have to decide it, even if in the meantime the
Legislature is dissolved. That was precisely the view taken by
this Court in Sheodhan Singh v. Mohan Lal . In that case the
election of the respondent to the Uttar Pradesh Legislative
Assembly was challenged by the appellant in an election petition
on the ground that the respondent was guilty of corrupt practice
during the election. The Uttar Pradesh Legislative Assembly
was dissolved by the President during the pendency of the
election petition before the High Court and a preliminary
objection was, therefore, raised on behalf of the respondent that
the election petition had ceased to be maintainable on account of
the dissolution of the Uttar Pradesh Legislative Assembly. The
High Court rejected the preliminary objection It on merits it
took the view that corrupt practice was not proved and
accordingly dismissed the election petition. The appellant
thereupon preferred as appeal to this Court and in the appeal
also the same preliminary objection was repeated on behalf of
the respondent. This Court negatived the preliminary objection.
Hegde, J., speaking on behalf of the Court emphasized that the
charge against the respondent was of corrupt practice and
pointed out that if the creation of the appellant that the
respondent was guilty of corrupt practice was found to be true,
then not only his election would be declared void but he would
also be liable to incur certain sectoral disqualification, and
therefore, in the interest of purity of elections it was necessary
that "those who bad corrupted the course of an election are dealt
with in accordance with law", and this purpose would stand
defeated if the election petition were held to become infructuous
on the dissolution of the Assembly. The learned Judge then
proceeded to consider the relevant elections of the Act and after
(1) [1959] 3 S.C.R. 417.referring to them, summarized his
conclusion by saying :"From the above provisions it is seen that
in an election petition the contest is really between the
constituency on the one side and the person or persons
complained of on the other. Once the machinery of the Act is
moved by a candidate or an elector, the carriage of the case does
not entirely rest with the petitioner. The reason for the elaborate
provisions noticed by us earlier is to ensure to the extent
possible that the persons who offered the election law are not
allowed to avoid the consequences of their misdeeds." It will be
seen that the emphasis in this decision was on the fact that the
charge against the respondent was of corrupt practice and it was
in this context that the Court held that where corrupt practices is
alleged against the respondent in an election petition, the
dissolution of the Legislature during the pendency of the
election petition does not render, it infructuous. We fail to see
how the ratio of this decision can have any application in the
present case. Here there is no charge of any corrupt practice
against the respondent. The only ground on which the election
of the respondent is sought to be invalidated is that he was
disqualified at the date of nomination under s. 9A. This
disqualification does not involve any act corrupting the
course of an election. It has no other consequence than that
of making the particular election void. It does not entail any
electoral disqualification for the future. There is, therefore, no
analogy between the two situations and this decision cannot be
called in aid by the appellant."
(emphasis added)
9. Further, in P.H. Pandian v. P. Veldurai, (2013) 14 SCC 685, the Hon'ble
Supreme Court after taking note of the fact that the fresh elections have
been held in the State Legislative Assembly, held that the appeal has been
rendered infructuous for all intents and purposes. And even if the appellant
succeeds on the issue, it would be of no consequence because fresh
election has already been taken place and the exercise of examining the
challenge based on section 9 of the Act, would only be now of an
academic exercise.
10. In the present case, the private respondents have not been elected but
nominated to the J&K Legislative Council, which is no more in existence
and if the petition is heard and decided on merits, it would be only an
academic, time-consuming exercise in futility, without having any
repercussions in future but of course resulting in wastage of precious
judicial time.
11. In view of the above discussion, we are of the considered view that no
fruitful purpose shall be served, if the petition at hand is decided on merits,
as the same has been rendered infructuous due to subsequent events noted
as above, by us. The petition is, accordingly, dismissed as having been
rendered infructuous.
(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE
Jammu:
29.05.2025
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
