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2020 DIGILAW 619 (JK)

Nuzhat Ara v. Srinagar Municipal Corporation

2020-11-24

PUNEET GUPTA

body2020
Order Puneet Gupta, J.— CM No. 5556/2020 : 1. The petitioners have challenged Notification No. SMC/CS/5027-5116 dated 19.11.2020, issued by respondent No.3 for election of Mayor of Srinagar Municipal Corporation. The petitioners claim to be contesting for Councilor in the by-elections of the Municipal Corporation. The grievance of the petitioners is that Notification issued for election of Mayor by respondent No.3/Secretary SMC is in violation of the Municipal Corporation Act and the Rules and Regulations framed there-under or in other words the said respondent has no authority to issue such Notification for election of Mayor. Further that the Notification impugned is also in violation of the Model Code of Conduct as the elections are being held for Urban Local Bodies including Municipal Corporations. 2. The learned counsels appearing on behalf of the caveators have argued that the petition itself is not maintainable and no interim relief can be granted to the petitioners at this stage as the petitioners are not elected representatives of the Municipal Corporation. The Model Code of Conduct which is in vogue is not applicable to the election of Mayor who is to be elected by the Councilors of the Municipal Corporation Srinagar. The Notification is perfectly valid in law is the contention raised on behalf of the caveators. 3. The learned Senior counsel appearing on behalf of the petitioners has argued that the election for Mayor is uncalled for when the by-elections for the Municipal Corporation Srinagar are to be held in the month of December and the petitioners are contesting the same. The petitioners are entitled to participate in the process of election for Mayor in view of their being candidates in the by-elections. The learned counsels for the respondents have argued that the petitioners have no locus to challenge the Notification issued for election of Mayor as they are not presently the Councilors. 4. The petitioners are admittedly not the Councilors of the Municipal Corporation Srinagar and only claim to be the candidates in the by-elections to be held for Councilors from their respective Wards. The contention of the learned Senior Counsel for the petitioners that the election for Mayor should be postponed so that the petitioners have opportunity to participate in the election process of Mayor as they are contesting the elections for Councilors of the Corporation cannot be entertained. The contention of the learned Senior Counsel for the petitioners that the election for Mayor should be postponed so that the petitioners have opportunity to participate in the election process of Mayor as they are contesting the elections for Councilors of the Corporation cannot be entertained. The petitioners who just claim to be the candidates for Councilorship in the by-elections cannot claim any right of participation in the election of Mayor. The process for election of Mayor cannot be stalled on the mere assumption that the petitioners can be the Councilors of the Corporation in the future. The petitioners cannot be said to have any direct interest in the election of the Mayor at this point of time. The democratic process cannot be made causality only for the reason that the interest of the petitioners may fructify in future. The petitioners are not entitled to any interim relief on the above ground alone. 5. The learned Senior counsel for the petitioners has raised argument that respondent No.3 has issued the Notification which is not within the domain of the said respondent. The Secretary of the Corporation is not the entity who can call for election of the Mayor. The other side has raised contention that the Notification impugned in the writ petition is in fact intimation notifying the process for holding elections to the post of Mayor and not that he has decided to hold election of the Mayor. The attention of the Court is drawn to the Jammu and Kashmir Municipal Corporation (Procedure and Conduct of Business) Regulations, 2005 by the counsels during the course of arguments. As per Regulation 9, subject to the provisions of Regulation 10, every list of business (including a supplementary list) to be transacted at the meeting of the Corporation shall be prepared by the Secretary under the direction of the Mayor. As per Regulation 10, the list of business of an ordinary meeting is to be arranged by the Secretary as per the order given in the Clauses. Regulation 11 speaks of the list of Business to be sent by the Secretary to the registered address of each Councillors as provided under Section 55 of the Act. As per Regulation 10, the list of business of an ordinary meeting is to be arranged by the Secretary as per the order given in the Clauses. Regulation 11 speaks of the list of Business to be sent by the Secretary to the registered address of each Councillors as provided under Section 55 of the Act. The argument of the learned counsels of the Caveators is that no fault can be found so far as issuance of Notification by the Secretary of the Corporation is concerned in view of the aforesaid Clauses of the Regulations. The impugned Notification reveals that it is issued by respondent-Secretary of the Corporation and he only notifies the Schedule for election of Mayor of Municipal Corporation, Srinagar. The Notification contains the words ‘by order’ meaning thereby that the Secretary has only notified the election process and not that he has authorized the election of Mayor of the Corporation. The presumption can be drawn otherwise that the Notification has been issued by the Secretary with the concurrence of the competent authority. 6. The learned Senior counsel for the petitioners has also argued that under Regulation 3 of the aforesaid Regulations, the date, time and place of a meeting for the election of Mayor and Deputy Mayor after general election is to be determined by the Commissioner and the date, time and place of subsequent meetings of the Corporation is to be fixed by the Mayor by general or special order passed in that behalf as provided in Section 53 of the Act. The same has not been followed in the present case is the submission on behalf of the petitioners. The Secretary, in any case, could not have issued the Notification as the mandate of the Regulations is otherwise. Learned counsel appearing on behalf of the Corporation has produced document which reveals that on 18.11.2020 a meeting was held under the Chairmanship of the Deputy Mayor (Acting Mayor) SMC with regard to the conduct of election of Mayor wherein the Commissioner and Secretary of SMC were also present and a decision for conducting election for Mayor was decided and the General Council Session was also decided to be called on 25.11.2020 and further the issuance and collection of nomination forms was also decided in the meeting. The document is purportedly signed by the Commissioner and Secretary of the Corporation. The document is purportedly signed by the Commissioner and Secretary of the Corporation. The document itself speaks of the approval of the Deputy Mayor (presently acting as Mayor) to hold election for Mayor of Municipal Corporation Srinagar. Merely because the Notification has been issued in pursuance to the said decision by the Secretary of the Corporation will not make the process of holding election of Mayor illegal or contrary to the provisions of law. The argument of the learned Senior counsel for the petitioners that the Notification is not in conformity with the provisions of the Corporation Act and the Regulations made there-under cannot find favour with the Court. Every amiss in the procedure cannot be the reason for holding the action of authority as illegal or nonest in the eyes of law. 7. Last but not the least, it is contended on behalf of the petitioners that the election for Mayor cannot be held as the same will be in violation of Model Code of Conduct as the elections to the Urban Local Bodies including Municipal Corporation are being held. The learned Senior counsel for the petitioner has relied upon Model Code of Conduct for Municipal Elections as applicable in various States. The reference is made in the petition with regard to the Model Code of Conduct for Local Bodies Election in Tamil Nadu and Goa. The reliance placed upon the ‘Model Code of Conduct’ which is in place in other States is misconceived. The Model Code of Conduct which is applicable in other States cannot ipso fact apply to the elections to be held for Urban Local Bodies including Municipal Corporation of the Union Territory. The Court is not to substitute the ‘Model Code of Conduct’ as applicable in other places which may or may not even contain the clause of barring the conduct of election of Mayor in the Municipal Corporations wherever they are in existence in other parts of the country. 8. The learned counsel appearing on behalf of the SMC has submitted that Model Code of Conduct is issued by the Chief Electoral Officer of the Jammu and Kashmir and, therefore, reliance upon any other Model Code of Conduct is misplaced. The Court finds no reason not to agree with this submission of learned counsel. 9. 8. The learned counsel appearing on behalf of the SMC has submitted that Model Code of Conduct is issued by the Chief Electoral Officer of the Jammu and Kashmir and, therefore, reliance upon any other Model Code of Conduct is misplaced. The Court finds no reason not to agree with this submission of learned counsel. 9. There is no clause in the Model Code of Conduct, issued by the Chief Electoral Officer of the Jammu and Kashmir, which bars the Municipal Corporation to hold the election for the post of Mayor during the ongoing process of by-elections of Municipal Bodies. 10. The learned counsels appearing on behalf of the respondents have referred to certain events and dates preceding the present Notification, under challenge, in order to bring home their contention that the election of Mayor of the Municipal Corporation cannot be delayed. The Court need not go into those events as the same are not germane for disposal of the present application. The Court should not ordinarily come in the way of holding of the election of the institutions like Local Bodies. 11. Looked from any angle, the contentions raised on behalf of the petitioners to stay the operation of the impugned Notification and consequently the process for holding the election of Mayor cannot prima facie sustain in the eyes of law. 12. The application filed for interim relief is dismissed being without merit. 13. List the main petition for consideration on 23.12.2020.