Jammu & Kashmir High Court - Srinagar Bench
Abdul Waheed Bhat vs Union Territory Of Jk & Ors on 4 March, 2020
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
Serial No. 246
Daily Supplementary List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
***********
WP (C) No. 146/2020
CM No. 619/2020
CM No. 207/2020
Abdul Waheed Bhat.
.............Petitioner(s)
Through: - Mr M. Saleem Parray, Advocate.
v/s
Union Territory of JK & Ors.
..........Respondent(s)
Through: - Mr Rais Ud Din Ganai, GA for R-1.
Mr Hilal Ahmad Wani, Advocate for R-6 to 10.
CORAM:
Hon'ble Mr Justice Dhiraj Singh Thakur, Judge.
JUDGMENT
(Oral)
01. The petitioner was duly elected as President of Municipal Committee, Aishmuqam. It appears from record that a No Confidence Motion was moved by the vice president, which, ultimately resulted in passing of a resolution, leading to the ouster of the President i.e. petitioner on 18th of January, 2020. The petitioner is aggrieved of the said resolution dated 18th of January, 2020, inter alia on the following grounds;
i. It is alleged that whereas as the total strength of the councilors in Municipal Committee, Aishmuqam is eight, the minimum quorum required for convening a meeting or for passing a resolution of ouster of the petitioner as President, was four. It is stated that one of the councilors, namely, Rafiqa Akhter/ Respondent No. 6 herein, had already resigned on 29 th of January, 2019 and, therefore, could not have participated in the Page 2 of 5 WP (C) No. 146/2020 CM No. 619/2020 CM No. 207/2020 alleged meeting held on 18th of January, 2020. It was urged that even when the Respondent No. 6 had submitted an application for withdrawal of resignation on 29th of May, 2019, the same could not have all been withdrawn in terms of section 15 of the Municipal Act, 2000.
ii. The next ground on which the petitioner challenges the resolution impugned, is that, the requisite procedure in terms of the Conduct of Meetings of Municipal Committee, as prescribed under the Jammu and Kashmir Municipality Procedure for Conduct of Meetings, Bylaws, 2005, had not been followed.
02. Records have been perused and counsel for the parties heard at length.
03. I propose to deal with the grounds of challenge as under;
(i) On the issue of resignation;
It appears that the Respondent No. 6 had submitted her resignation on 29th of January, 2019. This was presented to none else than the present President who is petitioner in the present petition. From the record, it appears that the letter of resignation in fact does not carry any specific date but the same envisage that the resignation should take effect from 29th of January, 2019. Subsequently, however, the Respondent No. 6 with regard to her resignation, had submitted an application yet again to the President of Municipal Committee, Aishmuqam, on 6th of February, 209. It is not denied that by that time, the resignation had not been accepted by the Committee. The matter Page 3 of 5 WP (C) No. 146/2020 CM No. 619/2020 CM No. 207/2020 concerning resignation of a member, is covered under section 15 of the Municipal Act 2000 and envisages that a member of municipality, may resign urgently with resignation in writing to the President, who shall place the same before the Municipality for its acceptance, unless withdrawn within fifteen days from the date of tendering of resignation and further that, on acceptance of the resignation, the seat of the member shall be deemed to have become vacant, to be filled up under section 19 of the Act.
A lot of emphasis was laid by the learned counsel for the petitioner to urge that since the resignation was not withdrawn within fifteen days from the date it was tendered, the same could not have been withdrawn and that by necessary implication, the Respondent No. 6, must be deemed to have resigned and the seat deemed to have become vacant. The argument, however, does not appear to be convincing and cannot be accepted for the simple reason that on the plain reading of letter of resignation, the same had desired that the resignation should take effect from 29th of January, 2019. If fifteen days were to be taken from 29th of January, 2019, the same would lapse on 13th of February, 2019. In the instant case, the letter of withdrawal of resignation appears to have been submitted before the President on 6 th of February, 2019, well within the time prescribed. Notwithstanding the above, in my opinion, the interpretation of section 15 of the Act, is not the same as was sought to be projected by the learned counsel for the petitioner. It is settled law that the letter of resignation can always be withdrawn before the same is formally accepted. In the present case, the Page 4 of 5 WP (C) No. 146/2020 CM No. 619/2020 CM No. 207/2020 Committee had not accepted the resignation tendered by the Respondent No. 6 and, therefore, the same could have been withdrawn at any time before the same was accepted. The fifteen days' period prescribed in section 15 of the Act does not at all mandate that resignation once tendered if not withdrawn within fifteen days, cannot be withdrawn thereafter. In fact, it only enjoins the President of the Municipality to forward and place the same before the Committee for a formal decision thereupon. Mr Rais Ud Din Ganai, learned GA representing Respondents 1 to 5 has also produced the records which shows that the Respondent No. 6 after the withdrawal of her resignation, had not only worked and attended the business of the Committee but had also received her honorarium from time to time.
Be that as it may, the argument of learned counsel for the petitioner is untenable on law as also on the facts of the present case.
(ii) The second point urged, was with regard to the failure on part of the official respondents to adhere to the procedure prescribed. A lot of emphasis was placed on the requirement of 48 hours' notice as is envisaged by the by-law 17 of the Procedure for Conduct of Meeting Bylaws, 2005. On a perusal of by-law 17, it can be seen that any member who wishes to move a resolution is required to give at least 48 hours' notice to the Executive Officer of his intention and get him into notice submitted copy of the resolution which he wishes to move. In the present case, it can be seen from the record that Vice President had duly communicated to the Executive Officer on 15th of January, 2020, of his intention to move a No Confidence Motion against the President i.e. Page 5 of 5 WP (C) No. 146/2020 CM No. 619/2020 CM No. 207/2020 petitioner herein. This notice was duly communicated also to the petitioner on 16th of January, 2020 and the meeting was formally held on 18th of January, 2020 when the impugned resolution was passed. In my opinion, the procedure as prescribed under the by-laws as also the section 25 of the Municipal Act 2000, appears to have been duly complied with.
04. In my opinion, the action taken in ousting the petitioner as President of the Municipal Committee, Aishmuqam, therefore, cannot be said to be in any manner vitiated on account of violation of any of the provisions either of Municipal Act 2000 or the Jammu and Kashmir Municipality Procedure for Conduct of Meetings, Bylaws, 2005.
05. In view of the above, the instant petition is found to be without merit, as such, the same shall stand dismissed alongwith connected CM(s), with costs of Rs. 5000/- to be deposited with Advocate's Welfare Fund. Interim direction shall stand vacated accordingly.
06. The records as produced by Mr Rais Ud Din Ganai, learned GA be returned to him.
(Dhiraj Singh Thakur) Judge Srinagar:
March 4th, 2020.
"Hamid"
Whether order is speaking? Yes/No.
Whether order is reportable? Yes/No.
ABDUL HAMID BHAT
2020.03.16 10:19
I attest to the accuracy and
integrity of this document