MAKHAN LAL Vs. UNION TERRITORY OF J&K
LAWS(J&K)-2020-10-21
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 15,2020

MAKHAN LAL Appellant
VERSUS
Union Territory Of JAndK Respondents

JUDGEMENT

Sanjeev Kumar,J. - (1.)The petitioner, claiming to be the duly elected President of Municipal Committee, Ramnagar, is aggrieved and has challenged Section 25 of the Jammu & Kashmir Municipal Act, 2000 ["the Act"] being ultra vires the Constitution of India. He also seeks a mandamus to the respondents to frame rules under the Act, more particularly, with regard to procedure and grounds for carrying out "no confidence motion? on the lines of Sections 7 and 30 of the Jammu & Kashmir Panchyati Raj Act, 1989 read with Rule 81 of the rules framed thereunder. The grievance of the petitioner, as projected in this petition, is two-fold:-
i) Section 25 of the Act, which makes provision for moving a motion of no confidence against the president or vicepresident, is ultra vires the constitution, in that, it gives arbitrary and unfettered powers to the members of the Council/Committee to throw out a duly elected President by sheer majority, whereas under the Panchyati Raj Act, the Sarpanch in terms of Section 7 and a Chairman of the Block Development Council, in term of Section 30, can only be removed on the specified grounds and after following the procedure, as laid down in Rule 81 of the Panchyati Raj Rules, 1989. The grievance of the petitioner is that in the absence of similar provisions providing for specific grounds for removal of the President and Vice-President of the Municipal Committee/Council, Section 25 confers wide and unbridled powers on the members to remove duly elected President or Vice-President by sheer majority.

ii) In the alternative, it is the plea of the petitioner that unless the rules in terms of Section 280 of the Act are framed by the government by way of delegated legislation, Section 25 of the Act cannot be operated or given effect to. In short, the argument is that Section 25, as it is and without framing of requisite rules laying down procedure for moving motion for no confidence, is unworkable.

(2.)In the backdrop of aforesaid submissions, Mr. Abhinav Sharma, learned counsel appearing for the petitioner, urges that this Court must issue mandamus to the respondents to perform their statutory duty enjoined by Section 280 of the Act and frame Rules, so as to give effect to the provisions of Section 25. He further submits that the government while framing rules in terms of Section 280 of the Act must also specify the grounds on which motion of "no confidence? can be moved against the President or Vice President of the Council/Committee.
(3.)Per contra, Mr. S.S.Nanda, learned Senior Additional Advocate General appearing for the respondents, submits that Section 25 read with sections that follow it is a complete code in itself and elaborately provides for the procedure to be followed in the no confidence motion. He places strong reliance on the Bye-Laws framed by the government in terms of Section 34 of the Act and urges that the ByeLaws lay down elaborately as to how a requisition/motion can be moved and also the authority who is competent to convene a meeting pursuant to such requisition/motion. He takes this Court to different provisions of the Act viz. Sections 25 to 32 in particular and submits that these provisions when read together lay down a complete procedure for moving "no confidence motion? for removal of the President or Vice President of the Council/Committee. He argues that Sections 25 to 32 do not require any aid of the rules to make them workable.
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