SYED AHMED SYED Vs. STATE OF J&K

JUDGEMENT

(1.) SEVEN members of the Legislative Assembly belonging to the National Conference, now a ruling party including Abdul Rahim Rather, the Finance Minister and Mohammad Ramzan Choudhary, a State Minister filed this writ petition through Sh. P. L. Handoo Advocate now the Revenue Minister of the state praying for the issuance of writ, direction or order to quash Government order No: 534 -Agri of 1984 dated 17th September. 1984 and also Cabinet decision No: 285 dated 17th September 1984 with a further command in nature of mandamus directing the respondents to order elections for the Panchayats and also to include legislative measures validating the acts done orders passed and decrees passed by the erstwhile Panchayats constituted under the Village Panchayat Act and the Rules made thereunder.

(2.) THE petitioners claimed that they were also the members of the District Development Board constituted by the Government for directing annual rural programme executed invariably through village Panchayats and block Panchayat Boards. It was submitted that Panchayat Boards were constituted under the J&K Village Panchayat Act which was enacted in the year 1958 and vide section 4 the provisions had been made for: a. Determining the number of Panches for a Panchayat prescribing that the number shall not be less than 7 nor more than 11. b. That a given Number of panches of a Panchayat shall be elected in the prescribed manner and that the same shall in all cases be more than those nominated. c. That all the Panches of a Panchayat shall be chosen by election alone. d. That on constitution of a Panchayat in the manner aforementioned majority or all of whom shall be elected, is expected to work according to the Jammu & Kashmir Village Panchayat Act, 1958 and Jammu and Kashmir Village Panchayat Rules now herein -after be the Act and the Rules. It is submitted that Chapter III of the Act prescribed the administrative functions and powers of village Panchayat which invariable were connected with the development of the rural works. Panchayats are further required to supervise contruction of buildings effectuate improvement in the working of sanitation, cleaning, repairing providing wells, tanks and also make provision for slaughter houses and prevent commission of offences relating to weights and measures Chapters 6 of the Act granted Judicial powers to the Panchayats to be performed by a Panchayati -Adalat. Chapter 9 makes provisions for constitution of block submitted that functions in the plan period were managed by the Panchayats under three sub -heads in terms of Prime Ministerâ„¢s twenty point programme i. e.: a) Scheme under the national Rural Employment programme; b) Community development and Panchayat works; c) Rural land employment guaranteed programme. The selection of Panchayat as the nucleus and, the pivot for organisation of rural development works is claimed to be essential because the, Panchayats constituted a basic elected; body in the country side brought into being on the basis of adult suffering as the legal organ of power. After referring to the different provisions of the Act, its functions, powers and scheme it is submitted that the existence of Panchayats in the State was mandatory and non -holding of the elections of the Panchayats was in contravention of the provisions of the Act. It is submitted that since 1977 no elections for the Panchayats have been held in the State particularly the Kashmir Division. The respondents had no jurisdiction to constitute village Panchayat Council with the matters required to be dealt with by the Panchayats Act and the Rule. Vide the orders impugned in the writ petition, the arrangements was sought to be substituted which according to the petitioners mean pushing aside, elected members of the Panchayat, Panchayati Adalats, block development Boards and instead to bring into existence the nominees of the then ruling clique assisted by Congress -I party who was alleged to be constituting the back -bone of the then council of Ministers. The impugned orders are alleged to be violative of the rule of law and the Act intended to defeat legislative will and was attributed to be malafide act against which except for extra ordinary jurisdiction of this court, the petitioners could not avail any relief from any other forum.

(3.) DURING the Pendency of the proceedings Sh. Gulam Nabi Hagroo a Senior Advocate of this court filed an application for being arrayed as a petitioner in the writ petition: After hearing Shri Hagrco and Mr. BA Khan CMP No: 1464 of 1987 was allowed and Shri G. N. Hagroo directed to be impleaded as party petitioner in this writ petition.