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2021 DIGILAW 111 (JK)

Omar Azhar Kakroo v. UT of J&K

2021-03-24

ALI MOHAMMAD MAGREY

body2021
Judgment Ali Mohammad Magrey, J.—These two writ petitions arising out of similar action of respondents are proposed to be disposed of by a common order. 2. The decision qua the post of President of Municipal Council, Baramulla, becoming vacant on account of support of majority of the Councilors to the No-Confidence Motion against the petitioner and subsequent decision that the Vice President of the Council will function as acting President of Municipal Council, Baramulla, till the post of President is filled up through election process, notified in terms of notification/order No. MC/Bla/2020/2644-48 dated 09.01.2021, issued by respondent No. 5, is questioned in the instant petition on the ground as detailed out, with particular reference that the respondent No. 5, has no power/authority to entertain the No-Confidence Motion, which motion was already withdrawn by the majority of the Councilors. 3. Mr. Javid Ahmad Kawoosa, learned Senior counsel, while reiterating the grounds challenging the notification impugned was asked as to what is the need for filing the writ petition bearing WP(C) No. 230/2021, subsequent to the instant one, submitted that the impugned action stands withdrawn and by treating the earlier motion as withdrawn. Subsequent No-Confidence Motion is processed by the respondent Director, Local Urban Bodies, Kashmir, Srinagar-respondent No. 4, on the communication dated 21.01.2021, of the respondent No. 5, seeking guidance on the subject, the respondent No. 4, vide communication dated 09.02.2021, directed the respondent No. 5, to adopt the course of action in tune with the provisions of Jammu and Kashmir, Municipal Act, 2000 and as per legal opinion furnished by Associate Law Officer and the respondent No. 5, acting upon the instructions of respondent No. 4, entertained the No-Confidence Motion dated 21.01.2021 and notified the schedule for conduct of special meeting of the Councilors on 17.02.2021, for discussion for vote of No-Confidence against the petitioner. Therefore, the petitioner has questioned the subsequent action of respondents in WP(C) No. 230/2021. 4. In view of statement made by Mr. J. A. Kawoosa, learned senior counsel, supported by the counsels appearing for the respondents, the writ petition WP(C) No. 52/2021, being rendered infructuous, as such, shall stand dismissed, accordingly. 5. Therefore, the petitioner has questioned the subsequent action of respondents in WP(C) No. 230/2021. 4. In view of statement made by Mr. J. A. Kawoosa, learned senior counsel, supported by the counsels appearing for the respondents, the writ petition WP(C) No. 52/2021, being rendered infructuous, as such, shall stand dismissed, accordingly. 5. The petitioner in petition WP(C) No. 230/2021, has questioned the instruction, issued by the respondent No. 4, in terms of communication dated 09.02.2021, asking the respondent No. 5, to proceed in the matter of No-Confidence Motion against the petitioner in accordance with the provisions of J&K, Municipal Act, 2000, and in accordance with the opinion of Associate Law Officer and the communication bearing No. MC/Bla/G/2021/2964-66 dated 12.02.2021, in terms whereof the respondent No. 5, has notified the schedule for discussion of No-Confidence Motion, against the petitioner on 17.02.2021 as also the communication informing the President, the schedule, date, time and venue for No-Confidence Motion against him, on the following grounds; i. That the so-called No-Confidence Motion allegedly moved against the petitioner is not maintainable in terms of Section 25 of the Act reads as under: 25. Motion of no confidence against President or Vice-President. (1) A motion of no confidence against the President or Vice-President, may be made in accordance with the procedure laid down in the rules. (2) where a notice of intention to move a resolution requiring the President or Vice-President of the municipality to vacate his office, signed by not less than majority of its total elected members is given and if a motion of no-confidence is carried by a resolution passed by a majority of elected members present and voting at its general or special meeting, the quorum of which is not less than one-half of its total elected members, the President or the Vice-President against whom such resolution is passed shall cease to hold office Forthwith. (3) Notwithstanding anything contained in this Act or the rules made thereunder the President or Vice-President of the Municipality shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the persons against whom a motion of no-confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the persons against whom a motion of no-confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting. (4) 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 no-confidence. The so-called No-Confidence Motion allegedly moved against the petitioner is not maintainable in terms of Section 25(4) of the Act is a mandatory provision and makes it clear that any subsequent motion of No-Confidence shall not be maintainable within the interval of one year of the last motion of No-Confidence. The earlier No-Confidence Motion being moved on 28.11.2020, and withdrawn on 09.01.2021, a new motion of No-Confidence could not have been moved for a period of one year. As such, the impugned communications issued by the respondents 4 and 5 being ultra-vires the statutory law. ii. That the procedure adopted by the respondent No. 5, is illegal and ultra-vires the statutory law on the point. It is submitted that the Executive Officer has no power or authority to convene a meeting of the Municipal Council or Municipal Committee. In fact it is the President of Municipal Council or Municipal Committee who has the power to admit a resolution for a particular meeting and has the power to convene any general or special meeting of the Municipal Council. iii. That after the order dated 15.01.2021, passed by this Hon’ble Court, was served upon the respondents, the petitioner came to know that a fresh No-Confidence Motion has been moved against him. It is stated that the so-called fresh No-Confidence Motion allegedly moved against the petitioner does not even bear any date however, petitioner was informed by the respondent No. 5 that the said motion has been moved on 21.01.2021. Furthermore the so-called No-Confidence Motion allegedly moved against the petitioner which has been shown to be signed by 10 Councilors is fake and forged. The signatures of some of the councilors have been forged on the said resolution for No-Confidence since the signatures of those councilors do not match with the signatures put on the earlier No-Confidence motion was withdrawn. iv. The signatures of some of the councilors have been forged on the said resolution for No-Confidence since the signatures of those councilors do not match with the signatures put on the earlier No-Confidence motion was withdrawn. iv. That the respondent No. 4, issued the impugned communication dated 09.02.2021, whereby he forwarded the legal opinion furnished by Associate Law Officer, Directorate of Urban Local Bodies, Kashmir further course of action in the matter as per J&K Municipal Act, 2000. The ALO concerned has opined that the Hon’ble Court has only stayed the communication bearing No. MC/Bla/2020/2644-48 dated 09.01.2021, and has not debarred from conducting fresh No-Confidence Motion and halting democratic process. It is further opined by the ALO that the concerned Executive Officer, viz respondent No. 5 herein be directed to withdraw the communication bearing No. MC/Bla/2020/2644-48 dated 09.01.2021 and to proceed afresh for conducting No-Confidence as per Municipal Act. It is submitted that the ALO concerned has opined that communication dated 09.01.2021, impugned by the petitioner in writ petition bearing WP(C) No. 52/2021 and stayed by this Hon’ble Court vide order dated 15.01.2021, be withdrawn so as to ensure that the said writ petition filed by the petitioner becomes infructuous. v. That the respondent No. 5, has submitted the impugned report to the respondent No. 4, who has no authority or jurisdiction over the matter either under the Jammu and Kashmir Municipal Act, 2000 or under the Rules and Regulations made thereunder. Hence the entire proceeding from its inception to its culmination is without jurisdiction and as such nullity in the eyes of law. 6. On notice respondents have filed objections, wherein it is stated that the case of the petitioner essentially hinges on the ground that the notice of No-Confidence Motion moved by the answering respondents on 21.01.2021, and thereto in conduct of the special meeting, is hit by Section 25(4) of the Municipal Act. It is a case of the petitioner that it is so for the reason that a No-Confidence Motion was already moved against the petitioner on 28.11.2020 and withdrawn on 09.01.2021, as such, a new motion could not have been moved for a period of one year. It is stated that the contention so raised is legally misconceived. The bar placed under Section 25(4) of Municipal Act is available only in case a valid No-Confidence Motion is put to vote and thereto is given effect. It is stated that the contention so raised is legally misconceived. The bar placed under Section 25(4) of Municipal Act is available only in case a valid No-Confidence Motion is put to vote and thereto is given effect. The mandate of Section 25(4) of Municipal Act cannot be read in isolation and has to be read in conjunction with mandate of Section 25(2) of Municipal Act. It being so, as the No-Confidence Motion dated 28.11.2020, was withdrawn on 09.01.2021 and thereto the result of the No-Confidence Motion, was not given effect to, in compliance to Court order dated 15.01.2021 as passed by this Hon’ble Court in a petition filed by the petitioner, registered as WP(C) No. 52/2021, in law no valid No-Confidence Motion can be held to have been made as against the petitioner on 28.11.2020, so as to render the No-Confidence Motion dated 21.01.2021, hit by Section 24(4) of Municipal Act. As a matter of fact it is the case of the petitioner in the writ petition supra that No-Confidence Motion dated 28.11.2020, on account of it having been withdrawn, could not have been put to vote. 7. It is further averred in the objections that the Executive Officer has the powers, competence and jurisdiction to convene a special meeting. The President has no such power to admit a resolution requiring the President to vacate his office. The impugned communications dated 09.02.2021 and 12.02.2021 are valid and in accordance with law. The Hon’ble High Court has only stayed the communication dated 09.01.2021 and not that of any legal process, available in law to that of the answering respondent for seeking consideration of a resolution. The impugned process has been initiated in accordance with law and to give effect to the mandate, vested in law to the answering respondent, on being duly elected as the Councilors of Municipal Council, Baramulla. The motion was moved by the answering respondents on 21.01.2021. The signatures on the motion are not fake or forged. 8. It is stated in the objections by the respondents that petitioner has tried to mislead this Hon’ble Court. It is further stated that a communication dated 19.01.2021, was addressed by the respondent No. 5, to that of respondent No. 4, prior to the No-Confidence Motion moved by the answering respondents on 21.01.2021. 8. It is stated in the objections by the respondents that petitioner has tried to mislead this Hon’ble Court. It is further stated that a communication dated 19.01.2021, was addressed by the respondent No. 5, to that of respondent No. 4, prior to the No-Confidence Motion moved by the answering respondents on 21.01.2021. The instructions sought by the respondent No. 5, in terms of communication dated 19.01.2021, are in light of the order passed by the Hon’ble High Court in the writ petition, filed by the petitioner registered as WP(C) No. 52/2020. It is further stated that it is only after that the receipt of the No-Confidence Motion moved by the answering respondent on 21.01.2021, the respondent No. 5, in terms of communication dated 21.01.2021, was pleased to seek legal opinion from respondent No. 4, with regard to convening of a special meeting of elected members viz conduct of floor test thereof. 9. Mr. J. A. Kawoosa, learned senior counsel appearing for the petitioner while reiterating the grounds of challenge submits that there is no scope for the respondents 4 and 5, to entertain the No-Confidence Motion, which will be second in turn in view of the power contained in Sub Section (4) of Section 25 of Jammu and Kashmir Municipal Act, 2000, wherein the motion of No-Confidence under Section 25 shall not be maintainable within interval of one year and subsequent No-Confidence Motion shall not be maintainable within the interval of one year of the last motion of No-confidence. Learned senior counsel submits that first No-Confidence Motion dated 28.11.2020, against the petitioner stands settled on 09.01.2021, when 10 elected Councilors withdrew No-Confidence Motion by notification dated 09.01.2021 of the respondent No. 5, therefore, by application of Sub Section (4) of Section 25, the term of interval of one year is yet to expire and the last motion of No-Confidence is also yet to expire, which shall be counted from the date of withdrawal and subsequent notification dated 09.01.2021. 10. Mr. J. A. Kawoosa, learned senior counsel while reiterating the grounds of challenge against the action impugned, has questioned the power of respondent No. 5, by application of the provisions of J&K Municipal Act, 2000 and J&K, Municipality (Procedure For Conduct of Meetings) Bye-Laws, 2005. 10. Mr. J. A. Kawoosa, learned senior counsel while reiterating the grounds of challenge against the action impugned, has questioned the power of respondent No. 5, by application of the provisions of J&K Municipal Act, 2000 and J&K, Municipality (Procedure For Conduct of Meetings) Bye-Laws, 2005. The attention in this connection is invited to Section 10 of the Jammu and Kashmir Municipal Act, 2000, which provides for composition of Municipalities and proviso of Sub Section 3, makes reference that the Executive Officer in the case of a Municipal council and Municipal Committee, shall have the right to attend all the meetings of the municipality. Further explaining Mr. J. A. Kawoosa, learned senior counsel submits that the motion of No-Confidence against the President and Vice President of the Municipal Council is required to be made in accordance with procedure laid down in the rules and the procedure as per laid down the procedure for conducting the meetings, it is only the President who convene meetings of the Municipal Council or Municipal Committee by general or special order passed in that behalf. Learned senior counsel further submits that there is no provision in the Municipal Council Act or Bye-laws, which empowers the respondent No. 5 to notify the date, time and schedule for floor test of the No-Confidence Motion of the council. Therefore, the action being without jurisdiction is ab-initio bad in law. 11. Mr. Jahangir Iqbal Ganai, learned senior counsel submits that in terms of proviso 6 of the J&K Municipality (Procedure For Conduct of Meetings) Bye-Laws, 2005, the respondent No. 5 is the authority to ensure election of President and Vice President and in same manner, he exercises the power to regulate the No-Confidence Motion against the President and Vice President for its floor test in the council. Learned senior counsel further submits that by no stretch of imagination the proposition as submitted by Mr. J. A. Kawoosa, learned senior counsel can be accepted that the respondent No. 5, has no power that the Government has not notified any officer for regulating the business and conducting the floor test of the No-Confidence in the provisional Act. 12. Heard learned counsel for the parties, perused the records and considered the matter. 13. J. A. Kawoosa, learned senior counsel can be accepted that the respondent No. 5, has no power that the Government has not notified any officer for regulating the business and conducting the floor test of the No-Confidence in the provisional Act. 12. Heard learned counsel for the parties, perused the records and considered the matter. 13. Admittedly, the No-Confidence Motion moved against the petitioner on its subsequent withdrawal cannot be termed as having failed by deciding the same on the floor of the council, therefore, the withdrawal will not have any effect on the Motion of No-Confidence, moved against the petitioner by the majority of the Councilors, which is processed for floor test in accordance with law. The contention raised by Mr. J. A. Kawoosa, learned senior counsel in the writ petition with the support of arguments and supply of law, if accepted will render the whole scheme of law qua subject of No-Confidence against the President and Vice President as redundant. Therefore, being misconceived, shall stand rejected. 14. Perusal of the J&K Municipality (Procedure For Conduct of Meetings) Bye-Laws, 2005 read with General Clauses Act, leaves no doubt in the mind of the Court in accepting the contention of Mr. Jahangir Iqbal Ganai, learned senior counsel that the procedure adopted is in tune with the law, therefore, the spirit of ensuring democratically provided right of exercising vote by No-Confidence motion for floor test is in accordance with law. 15. In view of the above background, the writ petition being without merit, shall stand dismissed along with connected CM(s). 16. Pendency of the writ petition and the interim orders may have become the impediment for the respondent No. 5, to carry the motion to its logical conclusion, however, with the dismissal of the writ petitions, the respondent No. 5, shall now be free to proceed in the matter in accordance with law. Registry to place copy of this order on each of the file.