BASHIR AHMED KHAN Vs. FAROOQ ABDULLAH

JUDGEMENT

(1.) ON the notice having been issued in this writ petition to show cause against its admission, objections have been filed on behalf if the respondents by the Chief Government Advocate. In the objections, it is stated that the points raised in the writ petition stand already covered by the Supreme Court judgment reported in AIR 1971 SC 1002 and re -affirmed in AIR 1971 SC 1551 and, therefore, the writ petition is no longer maintainable.

(2.) APPEARING for the petitioner Mr. ZA Shah, learned counsel has submitted that a conjoint reading of Section 35, 36 and 37 of the Constitution of Jammu and Kashmir would show that after the dissolution of the legislative Assembly, the council of Ministers which was till then responsible to the House, cannot continue without any fresh order from the Governor in that behalf and that the Governor by not issuing a fresh order had failed to exercise his constitutional functions properly thereby rendering the continuance in office of the council of Minister, as bad in law.

(3.) A similar argument was also raised in the Supreme Court and was reppelled in AIR 1971 SC 1002. Their Lordships held that provisions of Art. 75 (3) corresponding to section 37 (1) of the State Constitution and which envisage the doctrine of ministerial responsibility has to be harmoniously construed with the provisions of Art. 75 (1) corresponding to Sec. 35 (1) of the State Constitution) and Art. 75 (2) Corresponding to Sec 39 of the state Constitution). Thus construed, it was held that Art. 75 (3) (Sec. 37 of the StaTe Constitution) applies only when the House of people does not stand dissolved or prorogued. Their Lordships went on to hold it cannot, therefore, be said that on the dissolution of House of the people, the Prime Minister and other Members must resign or be dismissed by the President."