S. No. 37

Regular Cause List

THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) no. 1044/2020

CM no. 2456/2020

Shafaat Gaffar Mir

…Appellant(s)/Petitioner(s)

Through: None

Vs.

UT of JK and others

...Respondent(s)

Through: Mr. Moomin Khan, Adv.

CORAM:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

01.02.2023

There is no representation on behalf of the petitioner.

Mr. Moomin Khan, appearing counsel for the respondents submits

that petitioner is seeking the following reliefs in the writ petition:

“By issuance of writ, order or direction including one in the nature of

mandamus, commanding official respondents to declare that pvt.

Respondents 7-9 to have ceased to be members of the Srinagar Municipal

Corporation on account of their disqualification in terms of Sec 34-A (I)

(b) of Municipal Corporation Act, 2000 and further direct the official

respondents not to allow the pvt. Respondents take part in any proceedings

in the Srinagar Municipal Corporation.

By issuance of writ, order or direction including one in the naure of

prohibiting pvt. Respondents 7-9 not to participate in any proceedings on

Srinagar Municipal Corporation.”

The said reliefs have been sought precisely on the ground that

respondents have defied the Whip issued by Indian National Congress.

During the No Confidence Motion moved against the Mayor of the

Srinagar Municipal Corporation, as petitioner submits in para 8 that a

communication was issued by the concerned authorities including the

respondent no. 1, 2 and 5, informing about the conduct of the private

respondents 7 to 9 and of their disqualification on the ground of defection.

The said communication has also been placed on record.

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WP(C) no. 1044/2020

CM no. 2456/2020

Learned counsel for the respondents submits that a decision on the

question of disqualification on the ground of defection is to be referred to the

Chief Electoral Officer, as provided under Section 34-C of the Jammu and

Kashmir Municipal Corporation Act, 2000. Section 34-C reads as under:

“34-C. Decision on question as to disqualification on ground of

defection.- If any question arises as to whether a member of the

Corporation has become subject to disqualification, the question

shall be referred for the decision of the Chief Electoral Officer by

any other member of the Corporation,”

Section 34-A provides disqualification on the ground of defection

charges. The case of the petitioner is that the respondents have violated the

Whip of the party, thus they have been disqualified to be members of the

Srinagar Municipal Corporation. The question of their disqualification on

account of violation of Whip is to be decided by the Chief Electoral Officer

in terms of Section 34-C of the Act.

Since there is a provision provided in the Act for the disqualification

on the ground of defection under Section 34-C of the Act, petitioner is

required to avail such a remedy.

Since this is no representation on behalf of the petitioner, this petition

is dismissed for non-prosecution along with connected CM(s).

Interim direction, if any, shall stand vacated.

(VINOD CHATTERJI KOUL)

JUDGE

SRINAGAR

01.02.2023

“Imtiyaz”

IMTIYAZ UL GANI

2023.02.03 10:46

I attest to the accuracy and

integrity of this document