Jammu and Kashmir High Court has dismissed a plea which had sought to restrain ten corporators from participating in Srinagar Municipal Corporation’s (SMC) standing committees elections which were scheduled for today. These corporators had voted against the whip issued by the chief whip of Congress in SMC.
While dismissing the petition, a Bench of Justice Ali Muhammad Magrey held that no relief can be granted by the court unless J&K’s Chief Electoral Officer (CEO) takes a decision with regard to the disqualification proceedings which are pending before him against the 10 Corporators.
“Unless and until there was a declaration from the competent authority (CEO) declaring the 10 councilors disqualified on the ground of defection, no direction can be issued by this court in exercise of powers under Article 226 of the Constitution to restrain the councilors from participating in any further proceedings of the Srinagar Municipal Corporation”.
The court held that the interpretation of the scheme of law was not warranted because the petition, on its plain reading, has a limited scope where the provisions of the Act were not under challenge so as to test the validity of the same.
The court however made it clear that dismissal of the petition would not preclude CEO from taking the proceedings pending before his authority with regard to disqualification of the corporators on account of defection to their logical conclusion expeditiously on merits.
Advocate Shuja-ul-Haq Tantray on behalf of Basharat Bin Qadir submitted that the corporators had gone against the Whip issued by the petitioner as Chief Whip of Congress party with regard to participation in the elections of SMC Mayor, have lost their status as Councilors with the application of the Scheme as provided in the Jammu and Kashmir Municipal Act.
With application of Section 34(A) of the Act, he said, these Councilors have attained disqualification.
He said the decision on the question of disqualification of the corporators on account of defection was pending before the CEO since December, 2020, yet there was no progress in the proceedings. He contended the mandate of Section 34(A) of the Act makes it axiomatic that the corporators have attracted disqualification for voting contrary to the party Whip.
While advocate S R Hussain on behalf of the corporators submitted that allegation of defection was subject to decision before the competent authority in terms of Section 34(C) of the Act, Advocate Moomin Khan representing SMC said by no stretch of imagination the petitioner could seek the relief of restraining Corporators who have not lost their status as Corporators in terms of Section 34(A) and Section 34(C) of the Act.
Notably the congress party has filed a petition before CEO seeking disqualification of the 10 Congress Corporators who went against the party whip and voted for the incumbent Srinagar Mayor Junaid Azim Mattu. The party had issued the whip through Chief whip Basharat-Bin- Qadir to vote in favour of Sheikh Muhammed Imran in Mayoral elections.
Ten Corporators from the Congress party defied the whip and instead of voting for Sheikh Muhammad Imran voted fo Mattu. The 10 Corporators were Shafat Ghaffar, Ziyarat Batamaloo (Ward 21), Farooq Dar – Chanapora (Ward 11), Sara Bilal – Lokut Dal (Ward 64), Zahoor Hussain Rather – Hamdania Colony (Ward 17), Haseena Bano- Chattarhama (Ward 73), Shameema Khan – Bemina East (Ward 26), Gulshan Bilal – Syed Ali Akbar (Ward 34), Showkat Kak – Makhdoom Sahib (Ward 41), Syeda – Shaheed Gunj (Ward 22) and Ghulam Rasool Hajam – Zainakote (Ward 30).