SPEAKER LEGISLATIVE ASSEMBLY Vs. ABDUL JABBAR SHEIKH HASSAN UD DIN BANDAY

JUDGEMENT

(1.) The Preliminary issue which this court is called upon to decide at this stage is :-

(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 Hon'ble Speaker, J and 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 Legislature Party have violated the Party Whip and chosen voluntarily to withdraw support they were obliged to lend to Leader of the House Dr. Farooq Abdullah to whose Party they belonged and have chosen Shri G. M. Shah as their Leader knowing full well that he has been expelled from Jammu and Kashmir National Conference. This constitutes 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 Hazratbal. 4. Shri Sona Ullah Dar MLA Pulwama. 5. Shri Ghulam Hassan Mir MLA Tangmarg. 6. Shri Mohamad Khalil Johar MLA Bandipora 7. Shri Hakim Mohamad Yasin MLA Khan Sahib. 8. Shri Munshi Habib Ullah MLA Kargil. 9. Shri Dilawar Mir MLA Rafiabad. 10 Shri Mehboob Beg MLA Anantnag. 11. Smt. Khem Lata Wakhlu Nominated MLA. 12. Smt. Gaurbachan 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 objections as also contested the stand of Shri Khan on facts and law. The non-applicants asserted that they were not disqualified 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 S.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 Hussain 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.