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2020 DIGILAW 288 (JK)

Hakim Rohulla Ghazi v. Union Territory of J&K

2020-07-03

DHIRAJ SINGH THAKUR

body2020
ORDER : 1. This is a batch of petitions which are taken up for final disposal together in view of the fact that common questions of law and fact are involved. WP(C) No.3631/2019: 2. The petitioner claims that he was unanimously elected as President of the Municipal Committee, Budgam, which fact was notified vide SRO 332 dated 27th of May, 2019, declaring the petitioner as elected President w. e. f. 13.11.2018. 3. It appears that some of the Councilors, elected for Municipal Committee, Budgam, being not satisfied with the working of the petitioner as President, decided to initiate a ‘no confidence motion’ against the petitioner. This was done vide communication dated 01.06.2019. 4. At this stage, it would be necessary to refer to Section 25 of the Jammu and Kashmir Municipal Act, 2000 (hereinafter referred to as the Act of 2000), which provides the method and manner of dealing with ‘no confidence motion’. Section 25 (2) of the Act of 2000 envisages the issuance of a notice of intention to move a resolution against the President or Vice President of the Municipality, which is to be signed by not less than majority of its total elected members. It further envisages that a motion of no confidence has to be passed in a general or special meeting by a majority of elected members present and voting, the quorum of which should not be less than one half of its total elected members. Section 25(4) envisages that a motion of no confidence shall not be maintainable within one year from the date of election of the President or Vice President and further any subsequent motion of no confidence shall not be maintainable within the interval of one year of the last motion of no confidence. 5. It appears that since the communication dated 01.06.2019, intending to be a notice of intention to move a no confidence motion against the President, was moved by the members within the prohibited one year period from the date of election but the same was not taken to its logical conclusion. However, the matter did not rest at that. A second attempt was made by as many as six members from out of total of nine members constituting the Municipal Committee, Budgam, when another notice dated 13th of November, 2019, was issued. However, the matter did not rest at that. A second attempt was made by as many as six members from out of total of nine members constituting the Municipal Committee, Budgam, when another notice dated 13th of November, 2019, was issued. The said communication was forwarded by the members to the Executive Officer, Municipal Committee, Budgam, who further processed and forwarded the same to the District Election Officer (Deputy Commissioner) Budgam. 6. In the above background, petitioner filed the present writ petition bearing WP(C) No.3631/2019, praying for a Writ of Certiorari for quashing the so called motion of ‘no confidence’ made against the petitioner on or before 01.06.2019, as also the second so called motion of ‘no confidence’ dated 13.11.2019, together with the communication addressed to the Chief Executive Officer, Municipal Committee, Budgam, whereby the members communicated that they had decided to elect Mehraj-ud-din, Councilor, as President, among other officer bearers. 7. By virtue of an interim order dated 16.12.2019, a Co-ordinate Bench of this Court directed continuance of petitioner as President, primarily, having been satisfied on the argument that the ‘no confidence’ motion could not have been moved any time before 27th of May, 2020, inasmuch as the petitioner was declared to have been elected as President on 24th of May, 2019. 8. At the very outset, it needs to be noticed that SRO 332 dated 24th of May, 2019, declared the petitioner as having been elected as a President w.e.f. 13.11.2018, therefore, the bar in regard to moving a ‘no confidence’ motion in terms of Section 25(4) of the Act of 2000 would be counted not from the date of notification dated 27th of May, 2019 but from the date of election of the petitioner as President i.e. 13.11.2018. 9. In the above background, learned counsel for the petitioner stated that: 1. The first attempt of moving a ‘no confidence’ motion on 1st of June, 2019, having failed, the bar of Section 25(4) would apply and, therefore, second ‘no confidence’ motion dated 13th November, 2019, could not have been moved until expiry of one year; 2. The ‘no confidence motion’ as reflected in the communication dated 13th November, 2019, is non-est in the eyes of law, inasmuch as the same has to be preceded by a notice of intention to move a resolution in terms of Section 25(2) of the Act of 2000. 10. The ‘no confidence motion’ as reflected in the communication dated 13th November, 2019, is non-est in the eyes of law, inasmuch as the same has to be preceded by a notice of intention to move a resolution in terms of Section 25(2) of the Act of 2000. 10. Heard learned counsel for the parties. 11. Admittedly, the first communication dated 1st of June, 2019, which read as a ‘no confidence’ motion against the petitioner, was not taken to its logical conclusion. At best, the same could be stated to be a notice of intention to move a resolution. The issue of ‘no confidence’ was never placed, much less discussed, in a general or special meeting of the Municipal Committee, Budgam and, therefore, strictly speaking, it cannot be said that the resolution had failed attracting Section 25(4) of the Act of 2000. With a view to attract prohibition contained in Section 25(4) of the Act, the resolution should have been placed before a general or special meeting of the Municipal Committee. The same should have been discussed and put to vote resulting in either passing of the resolution or its failure. In either of the eventualities, the bar under Section 25(4) of the Act would get attracted. 12. In the present case, the same cannot be said to have happened in regard to communication dated 01.06.2019, which, at best, can be said to be only a notice of intention to move a resolution. If that be so, it cannot be said that there was any bar for the members in laying another motion vide communication dated 13th of November 2019, as one year had already expired on 12.11.2019 taking the date of election of the petitioner as 13.11.2018 in terms of SRO 332. 13. The communication dated 13.11.2019 certainly is not a resolution of ‘no confidence’ but at best can be said to be an intention to move a resolution. This is admitted by the counsel for the respondents, Mr. Rayees-ud-din Ganai, who stated that after receipt of communication dated 13.11.2019, in the ordinary course, the Deputy Commissioner was required to convene a general or special meeting by fixing a date, inasmuch as the motion was against the President. It was stated that no such action was taken on account of pendency of the writ petition before this Court. 14. Rayees-ud-din Ganai, who stated that after receipt of communication dated 13.11.2019, in the ordinary course, the Deputy Commissioner was required to convene a general or special meeting by fixing a date, inasmuch as the motion was against the President. It was stated that no such action was taken on account of pendency of the writ petition before this Court. 14. Be that as it may, for whatever has been stated above, I hold that there was no bar for the members of the Municipal Committee, Budgam, to lay a motion for removal of the petitioner as President of the Municipal Committee, vide communication dated 13.11.2019 and that the bar contained in Section 25(4) of the Act of 2000 was not attracted in the facts and circumstance of the present case. I further hold that the communication dated 13.11.2019 should be treated to be a notice of intention to move a resolution and since the same pertains to the office of the President, it would be open to the Deputy Commissioner, Budgam, to fix a date for convening a meeting of the members of the Municipal Committee, Budgam, with a view to enable them to consider the motion so laid. Accordingly, the Deputy Commissioner, Budgam, is directed to convene a meeting within one month from today. However, the petitioner shall be permitted to discharge his functions as President only for a period of one month. Thereafter his further continuance shall be dependent on the outcome of the meeting to be convened by the Deputy Commissioner, Budgam, as directed above. 15. Disposed of WP(C) No.3755/2019 & WP(C) No.899/2020 : In view of the direction passed in WP(C) No.3631/2019, both these writ petitions are rendered infructuous and are, accordingly, disposed of. Record be returned to the learned counsel for the respondents.