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1984 Supreme(J&K) 24
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
A.S. Anand, J.
Speaker Legislative Assembly - Appellant
Versus
Ab. Jabar Sheikh - Respondent
Reference Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 And 12/1984
Decided On : 30 June, 1984
Advocate For Appellant: Z.A. Shah
Advocate For Respondent: H.L. Bhagotra
Advocate For Respondent: B.A. Khan
Advocate For Respondent: M.H. Beigh
Advocate For Respondent: S.P. Gupta
Advocate For Respondent: R.P. Sethi
Advocate For Respondent: T.S.Thakur
Advocate For Respondent: V. Koul
Advocate For Respondent: G.N. Hagroo
Advocate For Respondent: G.R. Shah
Advocate For Respondent: M.K. Tikku
Advocate For Respondent: R.N. Kaul
Advocate For Respondent: B.A. Bashir
Advocate For Respondent: M.L. Qazi
Headnote:
CONSTITUTIONAL REFERENCE - DISQUALIFICATION OF MEMBERS OF LEGISLATIVE ASSEMBLY - SECTION 24-G OF THE REPRESENTATION OF THE PEOPLES ACT - SCOPE AND INTERPRETATION - PRELIMINARY ISSUE - WHETHER ALLEGATIONS IN THE COMPLAINT ATTRACT PROVISIONS OF SECTION 24-G - HELD, NO.
Fact of the Case:
The Speaker of the Jammu and Kashmir Legislative Assembly received a complaint from Sardar Rafiq Hussain Khan, Chief Whip of the Jammu and Kashmir National Conference Legislature Party, alleging that 12 members of the Legislative Party had violated the party whip and chosen voluntarily to withdraw support from the leader of the House, Dr. Farooq Abdullah, and had chosen Shri G. M. Shah as their leader knowing full well that he had been expelled from the Jammu and Kashmir National Conference. The Speaker issued notices to the non-applicants and received their replies raising preliminary objections and contesting the stand of Shri Khan on facts and law. The Speaker made a reference to the High Court under Section 70 of the Constitution of Jammu and Kashmir. The High Court issued notices to the non-applicants and permitted them to file supplementary submissions in response to the reference. During the pendency of the reference, Mr. Khan filed an affidavit conceding that the preliminary objection raised by the non-applicants was well founded. Mr. P.L. Handoo, appearing for Mr. Khan, sought to withdraw from the case on behalf of Mr. Khan and filed an application on his own behalf and on behalf of three others seeking permission to be impleaded as parties and to assist the court to dispose of the reference. The High Court permitted Mr. Handoo to assist the court on his behalf and on behalf of three others, without prejudice to the objections which the non-applicants may raise in reply to his applications regarding their locus standi to be impleaded.
Finding of the Court:
The High Court held that the allegations in the complaint, even if admitted to be true, did not attract the provisions of either clause (a) or clause (b) of Section 24-G of the Act. The court held that clause (a) of Section 24-G was not attracted because there was no factual assertion in the complaint/representation that the 12 named MLAs had voluntarily given up the membership of the National Conference party, which had set them up as candidates for the election. The court also held that clause (b) of Section 24-G was not attracted because the whip/direction did not relate to the proceedings inside the House and the question of voting or abstaining from voting in the House did not arise.
Issues: 1. Whether the allegations in the complaint attract the provisions of Section 24-G of the Representation of the Peoples Act? 2. Whether the 12 MLAs named in the complaint had voluntarily given up the membership of the National Conference party? 3. Whether the whip/direction issued by the Chief Whip of the National Conference Legislature Party related to the proceedings inside the House?
Ratio Decidendi: 1. The provisions of Section 24-G of the Representation of the Peoples Act are attracted only if the member concerned had voluntarily given up the membership of the political party which had set him up as a candidate in the election or if the member votes or abstains from voting in the House contrary to the directions or whips issued by the political party to which he belongs. 2. The expression "voluntarily gives up" denotes willing disassociation with the political party and the expression "membership" of the political party unmistakably implies disassociation with the political party by leaving that party. 3. The whip/direction issued by the Chief Whip of the National Conference Legislature Party did not relate to the proceedings inside the House, as it was not issued with regard to the transaction of any business on the floor of the House or to regulate the manner of voting on any issue in the House of the Legislature.
Final Decision: The High Court answered the reference accordingly and held that the non-applicants (12 MLAs) had not incurred any disqualification within the meaning of section 24-G of the Representation of the People’s Act.
The Preliminary issue which this court is called upon to decide at this stage is: -
Whether the allegations contained in the complaint of Sardar Rafiq Hussain Khan dated 3-7-1984 addressed to the Speaker Legislative Assembly attract the provisions of Section 24-G of the Representation of the Peoples Act ? If so, what is its effect ?
The facts deserve notice only in so far as they are relevant to the present issue aforesaid.
2. Sardar Rafiq Hussain Khan, Chief Whip of the Jammu and Kashmir National Conference, addressed the following communication to the Speaker of the Jammu and Kashmir Legislative Assembly :
To
The Honble Speaker,
J&K Legislative Assembly, Srinagar.
My dear Sir,
I as Chief Whip of Jammu and Kashmir National Conference Legislature Party wish to inform you that the following members of the Legislative Party have voilated the Party Whip and chosen voluntarily to withdraw support they are obliged to lend to Leader of the House Dr. Farooq Abdullah to whose Party they belonged and have chosen Shri O. M. Shah as their Leader knowing full well that be has been expelled from Jammu and Kashmir National Conference. This constitute, defection in terms of Anti-Defection Law of our State. I request you, therefore, to take appropriate action in terms of Section 70 of Jammu and Kashmir Constitution immediately.
1. Shri Abdul Jabbar Sheikh MLA Kangan
2. Shri Talib Hussain MLA Rajouri
3. Shri Hassam-ud-Din Banday MLA Hazratbai
4. Shri Sona Ullah Dar MLA Pulwama
5. Shri Gbulam Hassan Mir MLA Tangmarg
6. Shii Mohamad Khalil Johar MLA Bandipora
7. Shri Hakim Mohamad Yasin MLA Khan Sabib
8. Shri Munshi Habib Ullah MLA Kargil
9. Shri Dilwar Mir MLA Rafiabad
10. Shri Mehboob Beg MLA Anantnag
11. Shri Smt. Khem Lata Wakhlu Nominated MLA
12. Smt. Guarbachan Kumari Rana Nominated MLA
On receipt of the said communication, the Speaker of the Jammu and Kashmir Legislative Assembly issued notice to all the non-applicants mentioned in the communication of Sardar Rafiq Hussain Khan, calling upon them to file objections, if any, in regard to the communication of Shri Khan within ten days from the receipt of the notice. The non-applicants replied the notice raising preliminary objection : as also contested the stand of Shri Khan on facts and law. The non-applicants asserted that they were not dis-qualified from continuing to be the members of the Jammu and Kashmir Legislative Assembly. On receipt of their replies, the Speaker has made a reference to this court under Section 70 of the Constitution of Jammu and Kashmir.
3. Parties were issued notice and after service the non-applicants were also permitted to file supplementary submissions in response to the reference, without, however, introducing any fresh fact which was not already incorporated in their replies to the show cause notice issued by the Speaker At the request of Mr. P. L. Handoo appearing for Sardar Rafiq Hussaa Khan, proceedings were directed to be taken up from day to day as the learned counsel submitted that the references may be decided before 31st of July, 1984. The supplementary submissions were thereafter filed by the non-applicants in which besides reiterating the challenge as contained in their original reply to the show cause notice certain preliminary objections were also raised.
4. During the pendency of the reference in this court Mr. Khan at whose representation/complaint the Speaker of the Legislative Assembly had initiated the action and made a reference to this court, through a written communication addressed to the Deputy Registrar cancelled the power of attorney he had earlier issued in favour of Mr. Handoo. He also filed an affidavit through his counsel S/Shri H. L. Bhagotra and B. A. Khan. The affidavit for facility of reference is reproduced hereunder: -
1) That I have gone through the objections filed by all the 12-respondents
