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2020 DIGILAW 662 (JK)

Zakir Hussain v. Union Territory of J&K

2020-12-04

PUNEET GUPTA

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Order Puneet Gupta, J.— CM No. 4635/2020 1. The petitioner has challenged order bearing No. DCK/Suspension-Councillor/2020-2 dated 25.06.2020, passed by respondent No. 5, whereby the petitioner has been suspended from discharging his functions as councilor of Hill Development Council, Kargil. The stay of order impugned as measure of interim relief is sought for by the petitioner. The reply to the petition has been filed on behalf of the respondents. 2. The petitioner has been elected as Councillor of Shakar constituency of LAHDC, Kargil. It is pleaded by the petitioner that FIR came to be lodged against the petitioner on false allegations. The bail application filed by the petitioner was allowed by this Court on the ground that prima facie the essential elements of law are not attracted in the present case. The contention raised by the petitioner is that the respondent No. 5 has no power to suspend the petitioner as councillor as per Ladakh Autonomous Hill Development Councils, Act (hereinafter called the Act) and therefore the order passed is without jurisdiction. It is further contended that the Act does not provide suspension of councillor from the Council. Despite representation made by the petitioner the revocation of suspension of the petitioner has not taken place which has compelled the petitioner to file the present writ petition. 3. In the objections filed by the respondents it is submitted that the executive Council in its meeting held on 20.06.2020 under the Chairmanship of Chief Executive Councillor LAHDC, Kargil suspended the petitioner and suspension order was passed on the recommendation of Chairman/CEO LAHDC. FIR No. 34/2020 was lodged against the petitioner under Sections 124A, 153B, 505(2) and 188 IPC by the police Station, Kargil on the basis of objectionable audio clip containing seditious and proactive conversation and imputation and rumors against the Army stand-off with Chinese Army in Ladakh which was found to be prejudicial to the tranquility and security of the nation. The petitioner was in conversation with one Nisar Hussain in this regard. It is further contended that Section 24 of Jammu and Kashmir Representation of the People Act, 1957 regards disloyalty to the State as one of the grounds for suspension of petitioner under Section 17 of LAHDC Act. 4. Heard learned counsel for the parties. 5. Indeed, the learned counsels for both sides have advanced the arguments in tune with their respective pleadings. 4. Heard learned counsel for the parties. 5. Indeed, the learned counsels for both sides have advanced the arguments in tune with their respective pleadings. In order to appreciate the grievance of the petitioner qua the order impugned in the petition it is profitable to analyze if the Act provides for suspension of the Councillor from the council. In case the reply is to be in affirmative the next question for determination is if the order impugned has been passed by the competent authority in terms of the Act. 6. Section 19 of the Act speaks of removal of the Member of the Council on the grounds mentioned therein. The grounds on which the member can be removed are: the member is convicted by any Court for an offence involving moral turpitude punishable with imprisonment for a period of more than six months or he has been adjudged as insolvent or he has become physically or mentally incapable of acting as a member and lastly if has acquired such financial or other interests which is likely to affect prejudicially his functions as a member. The clauses of the said Section do not admit of the removal of the member of Council on any other ground except on the grounds mentioned therein. The court has gone through the provisions of the Act and finds no provision in the Act which expressly provides for suspension of the member of the Council. Once there is no provision for suspension of the member from the Council then irrespective of the reason which the competent authority may consider sufficient for suspension of the member cannot suspend the member from the Council. The suspension cannot be equated with removal. Even if it is considered for the sake of arguments that ‘removal’ encompasses the ‘suspension’ the reasons for suspension cannot be beyond the clauses mentioned in Section 19 of the Act. The court cannot look beyond to what is provided in the Act. If the provisions of the Act do not expressly or even impliedly provide for suspension of the member from the Council than in that case the court is not required to expand the provisions so as to hold that the provisions of the Act provide for suspension of the member from the Council. 7. If the provisions of the Act do not expressly or even impliedly provide for suspension of the member from the Council than in that case the court is not required to expand the provisions so as to hold that the provisions of the Act provide for suspension of the member from the Council. 7. The petitioner has further pleaded that the petitioner has not been, in any case, suspended by the competent authority if it is to be presumed for the sake of argument that the person/authority having power to remove the member can also suspend the member from the Council. The other side has contended that the order of suspension of the petitioner was passed by the respondent No. 5 on the recommendation of the Chairman/Chief Executive Councillor in pursuance to the decision taken by the executive Council in its meeting held on 20.06.2020. The court is again required to revert to the provisions of the Act. Section 23 pertains to the matters under the control and administration of the Council. The powers which the Council can exercise are clearly delineated in the clauses (i) to (xxvii) of the said section. In addition, the government can confer other powers upon the Council. Again, the court finds no such power is vested in the Council to remove its member from the Council. In fact the power of removal of member from the Council lies within the domain of the government and no other authority in terms of Section 19 of the Act. Section 28 of the Act prescribes powers, functions and duties of the Chairman of the Council. As per the Section the Chairman can preside over the meeting of the councilor and is also responsible for the maintenance of the record of the Council. Further, he can perform such other functions and discharge such other duties as the Council may, by general or special resolution, direct. The other provision which may be required to be looked into for the purpose of discussion is Section 38 of the Act. Deputy Commissioner of the district is the Chief Executive Officer of the Councillor. Section 38(2) provides that the Chief Executive Officer can be present at the meeting of the Council, the Executive Council and can also take part in the proceedings of such meeting but he has no right to vote during the proceedings of the meetings. Deputy Commissioner of the district is the Chief Executive Officer of the Councillor. Section 38(2) provides that the Chief Executive Officer can be present at the meeting of the Council, the Executive Council and can also take part in the proceedings of such meeting but he has no right to vote during the proceedings of the meetings. What is fathomed from various provisions of the Act is that neither the Council nor the Chairman of the Council nor the Chief Executive Officer of the Council has been bestowed with the power of removal of the member from the Council. If that is the case than it can be held that in the absence of any provision in the Act the above mentioned authorities have no power to remove the member from the Council. The government is the only authority to remove the member from the Council and none else in terms of Section 19 of the Act. No other authority can assume the power of the government to remove any member from the Council. The argument of the learned counsel for the petitioner that the order of suspension has been passed by the competent authority in terms of the Act cannot prime facie sustain in the eyes of law. 8. Once the court holds that the provisions of the Act do not provide for the suspension of the member from the Council the question of vesting of power to suspend in any of the authority mentioned in the Act does not arise. 9. Learned counsel for the respondents has vehemently argued that the petitioner is involved in a sedition case and the interest of country has been jeopardized by the petitioner through his action, the order of suspension passed by the respondents is valid one. In case the order impugned is stayed the same shall not be in the security of the State. Learned counsel for the respondents has also taken refuge under Section 24 of the J&K Representation of the People Act in order to impress upon the court that Section 24 of Jammu and Kashmir Representation of the People Act, 1957 prescribes disqualification of the member from the Council for the acts mentioned in the said section. It is pertinent to note that Section 24 pertains to disqualification of a convicted person from the membership who has been convicted for the period mentioned in the said section. It is pertinent to note that Section 24 pertains to disqualification of a convicted person from the membership who has been convicted for the period mentioned in the said section. It does not refer to suspension of the member from the Council. It may also be noted that Section 17 of the LAHDC Act refers to disqualification as member of the Council on the ground if he has been convicted for an offence involving moral turpitude or an offence mentioned in Section 24 of the J&K Representation of the People Act, 1957. The argument of learned counsel for the respondents has no relevancy in the present case as the question of disqualification is not in picture in the present case. Learned counsel for the petitioner has submitted that reference to Section 24 of the J&K Representation of the People Act by the learned counsel for the respondents is of no avail as the said Act stands repealed in pursuance to coming into force of J&K Reorganization Act, 2019. The court is of the view that in any case the reference to the provisions as mentioned by the learned counsel for the respondents has no relevancy to the issue in hand. 10. The argument of the learned counsel for the respondents that the acts of the petitioner jeopardized the security of the State and therefore the suspension of the petitioner from the Council is otherwise justified cannot be agreed to by the Court as the provisions of the Act do not provide for suspension of the member from the Council as held above. The charges against the petitioner are yet to be proved and the court cannot make comment on this aspect of the case. 11. To summarize, the court has held that the provisions of the Act do not provide for suspension of the member from the Council and that in any case the authorities recommending the suspension and the authority passing the impugned order of suspension do not have power for suspension under the Act even if it is to be presumed for the sake of argument that the term ‘removal’ includes ‘suspension’ of the member from the Council. 12. In view of the discussion made above, the court finds that the petitioner has been able to make out a case for stay of the impugned order, passed by the respondent No. 5. 12. In view of the discussion made above, the court finds that the petitioner has been able to make out a case for stay of the impugned order, passed by the respondent No. 5. The petitioner cannot be debarred from discharging his functions as member of the Council. Accordingly, the order impugned in the writ petition, passed by the respondent No. 5, is stayed till further orders. The order passed by the court shall not come in the way of the respondents to take any appropriate action against the petitioner as per the provisions of law. It is also made clear that observations made in the order are confined to the disposal of the interim application and shall have no bearing on the merits of the main petition. The application of interim relief is disposed of. 13. The writ petition is admitted. Counter, if any, be filed by the respondents by the next date. 14. List on 03.2.2021.