Poser to arbitrator: How can you also be chief of anti-corruption watchdog?

According to Section 5 of the Jammu and Kashmir Accountability Commission Act 2002, the chairperson and members “shall not hold any office of trust or profit."

Written by Jay Mazoomdaar | New Delhi | Updated: May 30, 2017 10:06 am
Justice Khan, chairperson of J&K SAC

Can the chairman of Jammu and Kashmir State Accountability Commission (SAC), the state’s top anti-corruption body “comparable to Lokpal”, continue to serve as arbitrator and charge fee? The question was asked of Justice B A Khan, former Chief Justice of Jammu and Kashmir High Court and the serving SAC chairperson, this February in the Karbala (Jor Bagh) land dispute case in New Delhi. He is yet to rule on the matter. According to Section 5 of the Jammu and Kashmir Accountability Commission Act 2002, the chairperson and members “shall not hold any office of trust or profit. or be connected with any political party or carry on any business or practise any profession”.

The Act stipulates that if one is practising any profession before entering the office of the chairperson, one must cease to do so. Justice (retired) Khan was sworn in as chairperson of the three-member SAC for five years in October 2015 but continues to serve as arbitrator. The Indian Express has learnt that Justice Khan is presently arbitrating in a number of legal disputes, including the Karbala case. Justice Khan did not respond to several emails and phone calls and his office said he would be “unavailable for some time”.

Several emails and phone calls to the offices of Jammu and Kashmir Chief Minister Mehbooba Mufti and state Chief Secretary B B Vyas, asking if Justice Khan obtained any No Objection Certificate (NOC) and, if he did, under which clause of the 2002 Act was it issued, remained unanswered. Maintaining that the Commission’s office was not aware of such activity, if any, of its chairperson, SAC member Justice (retired) J P Singh said that “conducting of arbitration would amount to practising of profession in terms of Section 5” of the 2002 Act which has no provision that empowers any authority, including the state government, to provide NOC to a chairperson or member of the SAC to continue as arbitrator and earn fee.

“The expression ‘other than his office as Chairperson or Member’ appearing in Section 5 of the Act, leaves no manner of doubt that the Legislature did not contemplate permitting them to do any activity other than their functions under the Act or continue with activities they had been doing in the past. If one continues to engage himself as arbitrator while in office, he may incur disqualification to continue as chairperson or member of the SAC,” Justice Singh said in an emailed response to The Indian Express.

In such a scenario, Justice Singh said, the 2002 Act “also disables and render ineligible SAC chairperson or members to seek reappointment in the SAC or accept any other assignment or appointment to be made by the Governor or any further employment of any other office of profit in Government of India or any state government.”

Justice (retired) Bashir A Kirmani, the other member of the SAC, did not respond to email queries. In February 2017, an application was filed on behalf of A M Khan, respondent in the Karbala land dispute case, before sole arbitrator Justice (retired) B A Khan, challenging his jurisdiction on two counts. The application said that the Waqf (Amendment) Act 2013 had come into force before the arbitrator took up the case and under sections 83 and 85 of the amended Act, all disputes with regard to Waqf property shall be decided by Waqf Tribunal.

The application also referred to Section 5 of the Jammu and Kashmir Accountability Commission Act 2002 to point out that as SAC chairperson, Justice Khan could not practice any profession or hold any other office of profit. In his order on February 25, Justice (retired) Khan acknowledged that “the respondent has filed yet another application challenging the jurisdiction of Arbitrator” and noted that the “respondent has to deposit fee and expenses” for the current hearing and arrears of Rs 1,30,000 as Arbitrator’s fee and Rs 40,000 in miscellaneous expenses.

“We have had a few hearings since February. All parties, including my client, have right to seek legal remedies under the law. The next hearing is in July,” said advocate Shahid Ali who had filed the application on behalf of A M Khan. The offices of Tasneem Ahmadi and Mehmood Pracha, advocates representing the other parties in the case, said they would not comment as the matter was sub judice.

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