Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yaqoob Malik vs Union Territory Of Jk & Ors on 20 April, 2022
Bench: Ali Mohammad Magrey, Puneet Gupta
Serial No. 34
Supplementary-1 Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 60/2022
CM No. 1881/2022
Caveat No. 476/2022
Mohammad Yaqoob Malik
... Appellant(s)
Through: -
Mr Shahbaz Sikander, Advocate.
V/s
Union Territory of JK & Ors.
... Respondent(s)
Through: -
Mr Sajad Ashraf Mir, Government Advocate vice Mr Rais-ud-Din Ganai, Government Advocate for Respondents; and Mr Shafqat Nazir, Advocate for the Caveator.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Puneet Gupta, Judge (ORDER) 20.04.2022 Magrey-J (Oral):
01. By this appeal, the Appellant has assailed the validity of final Order dated 24th of March, 2022 passed by the learned Single Judge in the Writ Petition filed by the Appellant, being WP (C) No. 122/2022, in terms whereof the said Writ Petition stands dismissed.
02. The brief facts of the case are that the Appellant/ Writ Petitioner had contested the election of the President of the Municipal Committee, Pampore, which consisted of thirteen (13) elected members, including the President, wherein he was declared as having been elected as the President of the Committee by the Presiding Authority vide certificate LPA No. 60/2022; CM No. 1881/2022: & Caveat No. 476/2022 Page 2 of 5 of election dated 21st of January, 2021. Thereafter, the Appellant is stated to have taken the oath as the President of the Committee on 12th of February, 2021. On 27th of January, 2022, however, a 'No Confidence Motion' was intended to be moved against the Appellant by seven (07) elected Councillors of the Committee and, accordingly, the meeting in that behalf was held on 5th of February, 2022, wherein the 'No Confidence Motion' was carried out against the Appellant with the majority of 7:6 votes. This process of laying and carrying out the 'No Confidence Motion' against him was assailed by the Appellant in the Writ Petition bearing WP (C) No. 122/2022. The learned Single Judge, however, did not find favour with the averments and submissions made by the Appellant and dismissed the Petition as being devoid of any merit vide the impugned Order dated 24 th of March, 2022. Feeling aggrieved and dissatisfied thereby, the Appellant has filed the instant appeal challenging the Order passed by the learned Single Judge, inter alia, on various grounds projected in the memo of appeal.
03. The issue raised in this appeal, put in a nutshell, relates to the legality of the 'No Confidence Motion' moved by seven (07) elected Councillors of the Municipal Committee, Pampore on 27th of January, 2022 against the President/ Writ Petitioner/ Appellant herein qua application of Sub-Section 4 of Section 25 of the Jammu and Kashmir Municipal Act, 2000 (for short 'the Act of 2000').
04. Mr Shahbaz Sikander, the learned Counsel for the Appellant, submitted that with the application of Sub-Section 4 of Section 25 read with Sub-Section 2 of Section 27 of the Act of 2000, the period of one year in LPA No. 60/2022; CM No. 1881/2022: & Caveat No. 476/2022 Page 3 of 5 the case of elected President of the Municipal Committee has to be reckoned from the date of notification issued by the Government in tune with the requirement of the mandate of Section 27 of the Act. It is submitted that the Writ Court has wrongly interpreted the application of Sub-Section 4 of Section 25 of the Act of 2000 and declared the period of one year from the date of certificate of election issued by the Presiding Authority on 21st of January, 2021 which, in no manner whatsoever, is the intention of the Legislation. It is contended that the conjoint reading of Sections 25 and 27 of the Act leaves no ambiguity in reckoning the period of one year from the date of notification of declaration of the result of the election by the Government which, in this case, is 3rd of February, 2021.
05. Learned Counsel for the Respondents, in unison, submit that the Legislation has not left any doubt in the interpretation of the application of the mandate of Sub-Section 4 of Section 25 and has, in clear terms, ordained that the period of one year for giving effect to the 'No Confidence Motion' against the President of a Municipal Committee shall be reckoned from the date of declaration of the result of the election against the position, which declaration, in the present case, has been made by the Presiding Authority on 21st of January, 2021. In this context, it is argued that the 'No Confidence Motion' is well within time in tune with the mandate of the Scheme of law and, as such, there is no scope for this Court to interfere with the Order passed by the learned Writ Court.
06. Having heard the learned Counsel for the parties and after going through the pleadings on record, the entire controversy involved in LPA No. 60/2022; CM No. 1881/2022: & Caveat No. 476/2022 Page 4 of 5 this appeal boils down on the reckoning of period of one year for giving effect to the 'No Confidence Motion' moved by elected Councillors against the President of a Municipal Committee (Appellant herein) in tune with the mandate of the provision of law provided under Sub-Section 4 of Section 25 of the Act of 2000. In order to appreciate this issue in its true and correct perspective, it has become necessary to have a glance of the import and purport of Sub-Section 4 of Section 25; Sub-Section 2 of Section 27 as well as the definition of 'Election' as provided under Clause 15 of Section 2 of the Act of 2002, which are extracted hereunder verbatim:
"Sub-Section 4 of Section 25: 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 co-confidence.
Sub-Section 2 of Section 27: Every election of a member shall be notified in the Government Gazette by the Chief Electoral Officer and every election of a President and Vice-President shall be notified by the Government in the Government Gazette within thirty days from the date of declaration of the result of such election.
Election: Election means and includes the entire election process commencing on and from the date of notification calling for such election of member and ending with the date of declaration and notification of results thereof."
A conjoint reading of the aforesaid provisions of law leaves no doubt in the mind of the Court that the period of one year for the purpose of 'No Confidence Motion' can only be reckoned from the date of declaration of election result which, in the present case, is 21st of January, 2021 as rightly held by the learned Single Judge. The argument of Mr Shahbaz Sikander, the learned Counsel for the Appellant/Writ Petitioner, that the election process is complete only when the result is notified in the Government Gazette in tune with the application of Sub-Section 2 of Section 27 is ill-conceived inasmuch as such a provision of law is only LPA No. 60/2022; CM No. 1881/2022: & Caveat No. 476/2022 Page 5 of 5 provided for enabling the declared elected candidate to assume the office and not otherwise. In other words, it is unambiguously clear that the declaration of result of election and notification of the declaration of the election are two distinct procedures meant for giving effect to the provisions of law so as to ensure that the elected office bearer assumes the office only after the notification in this behalf is issued in the Government Gazette and that the office bearer is able to subscribe the oath for assuming the office. This procedure, can, by no stretch of imagination, be clubbed or mingled with the process of reckoning the period of one year for purpose of calculating the time qua 'No Confidence Motion'. In these circumstances, we are of the considered opinion that the reasoning and view of the learned Single Judge in dismissing the Writ Petition filed by the Appellant is in tune with the mandate of the scheme of law governing the subject and that there is no illegality or perversity in the impugned Order passed by the learned Single Judge as would interference from this Court.
07. The afore being the position, this appeal fails and shall, accordingly, stand dismissed along with the connected CM. Interim direction(s), if any subsisting as on date, shall stand vacated. Caveat No. 476/2022 shall also stand discharged, accordingly.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
April 20th, 2022
"TAHIR"
I. Whether the Order is reporting? Yes/ No
II. Whether the Order is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2022.04.20 16:54
I attest to the accuracy and
integrity of this document