S. S. GUNDIAH v. STATE OF KARNATAKA — 1987 DIGILAW 50 (KAR)

K. A. SWAMI, J. ( 1 ) IN this Petition under Article 226 of the Constitution of India, the petitioner has sought for quashing the Karnataka Zilla Parishads (Election of Adhyaksha and Upadhyaksha) Rules, 1987 (hereinafter referred to as the 'rules' ). He has also further prayed for a declaration that the associated Members and the Members of the Legislative Assembly, the Members of the legislative Council and the Members of the Parliament in the State are not the members of the electoral college for the election of the Adhyaksha and Upadhyaksha under Section 165 of the karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats act, 1983 (Karnataka Act No. 20/1985) (hereinafter referred to as the 'act' ). ( 2 ) . A. K. Subbaiah, Learned Counsel for the petitioner has made it clear during the course of his arguments that though the petititioner has challenged the validity of the Rules, but he is not interested in challenging the validity of the Explanation to Sub-rule (2) of Rule 3 of the Rules; therefore, the challenge to the said Explanation may be treated as given up. In view of this submission, I proceed to consider the validity of the Rules except the Explanation to Sub-rule (2) of Rule 3 of the Rules. ( 3 ) THE contentions advanced by Learned Counsel Sri Subbaiah are : that the members of the state Legislative Assembly and the State Legislative Council and Parliament representing a part or whole of the District and whose constituencies lie within the jurisdiction of the Zilla Parishad and such members of the Legislative Council not elected from the territorial constituencies and ordinarily resident in the District though entitled to take part in the proceedings and to vote at the meetings of Zilla Parishad, but they are not entitled to participate and vote at the election of adhyaksha and Upadhyaksha of Zilla Parishad as per the provisions of the Act ; that nevertheless they have been enabled to participate and vote at the election of Adhyaksha and upadhyaksha by reason of the impugned Rules. Therefore, the contention of the petitioner is that the Rules in so far as they enable the members of the State legislature and Parliament falling under Sub-section (3) of Section 139 of the Act, to participate and vote at the election of adhyaksha and Upadhyaksha are beyond the Rule-making power of the State Government and as such the same are ultra vires of the Act. It is also the contention of the petitioner that if the aforesaid members of the Legislature and the Parliament are also empowered to participate and vote at the election of Adhyaksha and Upadhyaksha, not only the very democratic nature of the institution. e. , Zilla Parishad is affected but its chief executive head. e. , Adhyaksha will not be the representative of the elected members of the Zilla Parishad. It is also contended that such a situation will have the effect of defeating the very object and intendment of the legislature and as a result thereof, it will cease to be an elected body. Therefore, the contention is that having regard to the object of the Act and the functions and powers of Zilla Parishads, it is only the elected members of Zilla Parishad who are entitled to participate and vote at the election of adhyaksha and Upadhyaksha. In addition to these general contentions, the Learned Counsel for the petitioner has advanced several other contentions with reference to the Rules and the provisions of the Act and the same will be adverted to at the relevant stages. In addition to these general contentions, the Learned Counsel for the petitioner has advanced several other contentions with reference to the Rules and the provisions of the Act and the same will be adverted to at the relevant stages. ( 4 ) ON behalf of the respondent-State, learned Advocate-General submits that the constitution and composition of every Zilla Parishad is such that it includes not only the elected members but also the members of the State legislature and the Parliament falling within the ambit of Sub-section (3) of Section 139 of the Act, and they are also entitled to participate and vote at the election of adhyaksha and Upadhyaksha of the Zilla Parishad ; that the election to the office of the adhyaksha and Upadhyaksha is held at the meeting of Zilla Parishad ; that having regard to the provisions contained in the Act, the members of the State legislature and the Parliament referred to in Sub-section (3) of Section 139 of the Act are entitled to participate and vote at the election of the Adhyaksha and Upadhyaksha which takes place in the first meeting of the Zilla Parishad. Relying on a Division Bench decision of this Court in S. L. Chencha Reddy v. S Muniraju, 1961 mys. L J. 213 learned Advocate General submits that the contentions of the petitioner are no more res integra inasmuch as in Chencha Reddy's case while construing similar provisions contained in the Karnataka Village Panchayats and Local Boards Act, 1959, it has been held that the members of the State Legislature are entitled to participate and vote at the election of the president and Vice-president of the Taluk Development Board. ( 5 ) IN relation to the decision in Chencha Reddy's case, Sri Subbaiah, learned Counsel for the petitioner, submits that it is rendered on the provisions of the Karnataka Village Panchayats and local Boards Act, 1959 and as the scope, and intendment of both the enactments are quite different inasmuch as the Karnataka Village Panchayats and Local Boards Act never intended to transfer the power of governance to the Village Panchayats and Local Boards and those bodies did not enjoy the powers which the Zilla Parishads are endowed with. Therefore, having regard to the scope and object of the Act and amplitude of the power enjoyed by Zilla Parishads, it is submitted that the decision in Chencha Reddy's cast does not cover the issues involved in the instant case. ( 6 ) IN order to determine the aforesaid contentions, it is necessary to refer to the relevant provisions of the Act. 6. 1 As per Section 2 (39) of the Act, 'zilla Parishad' means a Zilla Parishad constituted under the act. Sections 138 and 139 of the Act deal with the establishment, incorporation and composition respectively of Zilla Parishad. Section 138 (1) provides that for each District, there shall be a zilla Parishad having jurisdiction, save as otherwise provided in the Act, over the entire District excluding such portions of the District as are included in a Municipality or are under the authority of a Municipal Corporation, a Sanitary Board, a Town Board or a Notified Area committee constituted under any law for the time being in force. Sub-section (2) thereof makes every Zilla Parishad, a body corporate. Thus according to Section 138, Zilla Parishad shall have to be established for each District in the State of Karnataka excluding the aforesaid areas. Every zilla Parishad is a body-corporate having perpetual succession and a common seal and is subject to such restrictions as are imposed by the Act or any other enactment and is vested with the capacity of suing and be sued in its corporate name and is entitled to acquire, hold, transfer moveable or immoveable property whether within or outside its limits of the area over which it has authority of entering into contracts and of doing all things, necessary, proper or expedient for the purpose for which it is constituted. 6. 2 As per Section 139 of the Act, Zilla Parishad is composed of three categories of Members. The first category consists Members who are directly elected by the electors. The number of members of this category to be elected from each Taluk is determined on the basis of the population as per Section 140. The second category consists of only one member viz. , the chairman or President of the District Central Co-operative Bank. He is described as 'associate member'. The number of members of this category to be elected from each Taluk is determined on the basis of the population as per Section 140. The second category consists of only one member viz. , the chairman or President of the District Central Co-operative Bank. He is described as 'associate member'. The third category consists of members of the State Legislative Assembly and the state Legislative Council and Members of Parliament representing a part or whole of the District whose constituencies lie within the jurisdiction of the Zilla Parishad and the members of the state Legislative Counsel not elected from territorial constituencies and ordinarily resident in the district. 6. 3. The aforesaid three categories of members of Zilla Parishad for the sake of brevity will, hereafter in the course of this order, be referred to as 'first', 'second' and 'third category members respectively. 6. 4. There are certain limitations imposed on the rights of second and third category members of zilla Parishad. The Second category member viz. , the Associate Member, is entitled to take part in the proceedings of Zilla Parishad but he has no right to vote in the proceedings of the Zilla parishad including at the election of Adhyaksha or Upadhyaksha and he is also not entitled to hold the office of Adhyaksha or Upadhyaksha. The second category member does not enjoy all the essential rights of a member of a Corporate body Therefore, he is described by the Statute itself as 'associate Member'. In other words, he is only associated with Zilla Parishad. In his capacity as Associate Member, he is only allowed to participate in the proceedings of Zilla parishad but has no right to influence the corporate decision or in other words become effective by exercising a vote for or against the proposition placed before Zilla Parishad for decision. Whereas it is not so in the case of third category members, as they enjoy all the rights of elected members (first category members) except the right to hold the office of the Adhyaksha and upadhyaksha. As far as the third category members are concerned, Sub-section (3) of Section 139 of the Act makes it clear that they are entitled to take part in the proceedings of and to vote at the meetings of the Zilla Parishad. As far as the third category members are concerned, Sub-section (3) of Section 139 of the Act makes it clear that they are entitled to take part in the proceedings of and to vote at the meetings of the Zilla Parishad. However, they are disabled from becoming or holding the office of the Adhyaksha or Upadhyaksha of the Zilla Parishad. 6. 5. At this stage itself it is relevant to notice that though Section 139 refers to First and Second category members as 'members', but it does not refer the third Category members as 'members'. But there is little difficulty in holding that the Third Category Members are Members of Zilla parishad. There is enough internal evidence in the Act itself. Section 139 which relates to composition of Zilla Parishad itself includes them in the composition of Zilla Parishad. Not only this, it also confers on them all the rights and liabilities of members of Zilla Parishad including the right to take part in the proceedings of and vote at the meeting of Zilla Parishad except the right to hold the office of Adhyaksha and Upadhyaksha. Section 170 (2) (b) does not make any difference between the First, and Third category members and it refers to both these category members as members and make a special reference to Second category as Associate Members. 6. 6. Thus from Sub-section (3) of Section 139 and Clause (b) of Sub-section (2) of Section 170 of the Act, it is apparent that a member of the Legislative Assembly, the Legislative Council and the Parliament satisfying the conditions laid down in Sub-section (3) of Section 139 by virtue of his position as such member, becomes a member of the Zilla Parishad and is entitled to participate in the proceedings of and vote at the meeting of the Zilla Parishad. Further the corporate body is a creature of the statute, it is open to the Creator (in the instant case the 'state legislature') to include in or constitute, the corporate body consisting of several categories of persons as members. Such composition of a corporate body is not uncommon in law. The only thing that has to be guarded is that it does not conflict with the provisions of the Constitution. No such conflict is pointed out in the instant case. Such composition of a corporate body is not uncommon in law. The only thing that has to be guarded is that it does not conflict with the provisions of the Constitution. No such conflict is pointed out in the instant case. ( 7 ) THE contention of the petitioner is that the election of the Adhyaksha and Upadhyaksha is not a proceeding of the Meeting of Zilla Parishad, therefore, the Third category members are not entitled to participate and vote at the election of Adhyaksha and Upadhyaksha. This argument is constructed on the provisions contained in Section 165 (1) of the Act. 7. 1. Sri Subbaiah submits that as per Sub-section (1) of Section 165 of the Act, Zilla Parishad shall have to choose two members from among the elected members of the Zilla Parishad as adhyaksha and Upadhyaksha, that Sub-section (1) of Section 165 does not say that the election of Adhyaksha and Upadhyaksha has to take place at the meeting of the Zilla Parishad and it is only in the meeting of the Zilla Parishad the Third category members are entitled to participate and vote and the meeting of Zilla Parishad is the one which is presided over by the Adhyaksha or upadhyaksha and as such a meeting of the Zilla Parishad can take place only after the election of adhyaksha and Upadhyaksha ; that as the election of Adhyaksha and Upadhyaksha is held under the Presidentship of the Commissioner, it cannot be considered to be a meeting of the Zilla parishad. 7. 2. It is not possible to accept these contentions. It is pertinent to notice that Clause (a) of sub-section (2) of Section 170 of the Act provides that the date of the first meeting of the Zilla parishad after first constitution or reconstitution shall be fixed by the Commissioner who shall preside at such meeting and the date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Zilla Parishad provided that the Adhyaksha may for sufficient reasons, alter the date of the meeting to a subsequent date Rule 3 (1) of the Rules provides that the election of Adhyaksha and Upadhyaksha shall be held in the first meeting of the constitution or reconstitution of the Zilla Parishad on such date as the Commissioner may fix. Subsection (2) of section 170 itself recognises the first meeting of the Zilla Parishad held under the Presidentship of the Commissioner as the meeting of the Zilla Parishad. Subsection (1) of Section 165 directs that "every Zilla Parishad shall. . . . . . . . . . . . choose two members. . . . . . . . . . . . ". Zilla Parishad means parishad composed of all the three categories of members. Of course out of them, second category member is not entitled to vote. The election of Adhyaksha and Upadhyaksha is a proceeding of the first meeting of Zilla Parishad held after its constitution or reconstitution. That it is so can be gathered from Sub-section (3) of Section 170 and Rule 3 (8) of the Rules. Sub-section (3) of Section 170 specifically provides that the proceedings of every meeting shall be recorded in the Minutes Book immediately after the deliberations of the meeting and shall after being read over by the Chairman of the meeting be signed by him. It is pertinent to notice that the expression used is 'chairman' and not 'adhyaksha' or 'upadhyaksha'. This is indicative of the fact that the first meeting of Zilla Parishad after its constitution though it is presided over by the Commissioner, nevertheless it is a meeting of Zilla Parishad. Therefore, the proceedings of it relating to the election of Adhyaksha or Upadhyaksha are to be recorded in the Minutes Book of of Zilla Parishad. It also follows that in every proceeding of the meeting of Zilla Parishad, the third category members are entitled to participate and vote. In this regard it is submitted that the purpose of the first meeting is only to constitute the Zilla Parishad so that it can exercise the powers under the Act ; and it amounts to nothing but handing over power to the Zilla Parishad. In this regard it may also be noticed that the expressions used in Sub-section (2) of Section 170 are 'the first meeting of the Zilla Parishad after the first constitution or reconstitution'. Therefore, we shall now see as to when a Zilla Parishad is constituted. The answer is not far to see. In this regard it may also be noticed that the expressions used in Sub-section (2) of Section 170 are 'the first meeting of the Zilla Parishad after the first constitution or reconstitution'. Therefore, we shall now see as to when a Zilla Parishad is constituted. The answer is not far to see. Sub-section (4) of Section 139 of the Act itself provides that no sooner two-thirds of the total number of members of a Zilla Parishad required to be elected have been elected, the Zilla parishad shall be deemed to have been duly constituted under the Act. The names of members elected to a Zilla Parishad are required to be published by the Government in the official Gazette under Section 159 of the Act. Thus on such publication of the result of not less than two-thirds of the total number of members required to be elected, not only the Zilla Parishad is constituted but the term of office of members elected also commences as provided by Section 161. Therefore, it is not possible to accept the contention that a Zilla Parishad is constituted after the first meeting and on the election of Adhyaksha and Upadhyaksha. The first meeting referred to in Sub-section (2) of Section 170 is no other than the meeting held for the purpose of electing the Adhyaksha and Upadhyaksha. That being so, it is not possible to accept the contentions of learned Counsel for the petitioner that the Act does not enable the Third category members to participate and vote at the meeting held for the purpose of electing Adhyaksha and Upadhyaksha of Zilla Parishad and such a meeting is not a meeting of Zilla Parishad' cannot at all be accepted. Acceptance of such contentions will be only doing violence to the provisions of the Act referred to above. Accordingly, the contentions are rejected. ( 8 ) AT this stage, it is pertinent to refer to the other contentions of the petitioner that if the third category members are allowed, or are held to be entitled, to participate and vote at the election of adhyaksha and Upadhyaksha, the very object and intendment of the Act will be defeated. Accordingly, the contentions are rejected. ( 8 ) AT this stage, it is pertinent to refer to the other contentions of the petitioner that if the third category members are allowed, or are held to be entitled, to participate and vote at the election of adhyaksha and Upadhyaksha, the very object and intendment of the Act will be defeated. The objects of the Act as may be gathered from the preamble to the Act are to assign to Zilla parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats local government and judicial functions and to entrust the execution of certain works and development schemes of the State Five year Plans and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in local and Governmental affairs and for purposes connected with and incidental thereto. I fail to see how those objects are in any way affected by enabling the third category membes to participate and vote at the election of adhyaksha and Upadhyaksha as long as it is not disputed and it cannot also be disputed having regard to Sub-section (3) of Section 139 that they are entitled to participate and vote in all other proceedings of Zilla Parishad meetings. Learned Counsel in order to bring home the point has given an illustration which may be stated as follows: In a given case, if out of sixteen elected members of Zilla parishad, ten members belong to 'a' party and the remaining six belong to 'b' party, by reason of enabling the third, category members to participate and vote at the election of adhyaksha and Upadhyaksha, if the third category members belonging to 'b' party, are five or more, 'a' party which has secured clear majority of elected members, will be reduced to minority if the third category members belonging to 'b' party are allowed to participate and vote at the election. In that event, the very democratic nature of the body will be lost inasmuch as even though 'a' party has secured majority among the elected members, it will not be entitled to have adhyaksha or Upadhyaksha chosen from among its members. This reasoning suffers from inherent infirmity. In that event, the very democratic nature of the body will be lost inasmuch as even though 'a' party has secured majority among the elected members, it will not be entitled to have adhyaksha or Upadhyaksha chosen from among its members. This reasoning suffers from inherent infirmity. The Adhyaksha or Upadhyaksha of the Zilla Parishad can discharge his duties and perform his functions and execute the programme of work only if he has the support of the majority in the Zilla Parishad. If he has no support of the majority, he cannot put-through his proposals in the meeting of the Zilla Parishad; consequently he will not be in a position to discharge his duties, perform his functions and execute the programme of work of the Zilla parishad. Therefore, as long as the third category members are entitled to participate in the proceedings of and to vote at the meetings of the Zilla Parishad, the Adhyaksha or Upadhyaksha elected without their support will not be able to have smooth sailing. As per Sub-section (3) of section 167 of the Act, every Adhyaksha and Upadhyaksha can be removed by a resolution of 'no confidence' passed at a meeting of the Zilla Parishad specially convened for the purpose by a majority of not less than two-thirds of the total number of members of the Zilla Parishad. In the proceedings of such meeting, the Third category members are also entitled to participate and vote. Therefore, if it is held that the thtid category members are excluded at the election of adhyaksha and Upadyaksha and they are only entitled to participate in the proceedings of and vote at the ordinary meetings of the Zilla Parishad held after the election of Adhyaksha and upadhyaksha, it will only result in defeating the aims and objects of the Act, in as much as the adhyaksha and Upadhyaksha of the Zilla Parishad will not be able to carry out any work and implement any programme or scheme because without the support of the majority of the members, they will not be able to have the approval of the Zilla Parishad for the action they propose to take and the work they propose to execute or the scheme or programme they want to implement, and they cannot act without taking the approval of the Zilla parishad. It also does not stand to reason that a member will have a right to participate and vote at the meeting specially called for the purpose of expressing want of confidence in Adhyaksha and Upadhyaksha and thereby remove them from the office held by them but will not have a right to participate and vote at the election of Adhyaksha and Upadhyaksha, The normal rule is that the power of removal flows from the power of appointment. Therefore, the right of the Third Category members of the Zilla Parishad to participate and vote at the meeting called for the purpose of expressing want of confidence in the Adhyaksha or Upadhyaksha flows from the right to participate and vote at the election of Adhyaksha or Upadhyaksha. Therefore, it has to be held that having regard to the fact that the third category members under the Act are entitled to participate and vote at the ordinary meetings and special meetings including the meeting falling under Sub-section (3) of Section 167 of the Act, and also the provisions of the Act referred to earlier they are also entitled to participate and vote at the election of Adhyaksha and upadhyaksha. Any other interpretation will not only not advance the objects of the Act, but it will defeat the objects and intendment of the Act inasmuch as the Zilla Parishad will not be able to function at all. If it is not able to function, it cannot discharge its responsibilities and execute the works. Therefore, keeping in line with the provisions of the Act and to further the aims and objects of the Act, it has to be held that the third category members are entitled to participate and vote at the election of Adhayaksha and Upadhyaksha. ( 9 ) SIMILAR contention was advanced in Chencha Reddy's case, 1961 Mys. L J. 213 but it was negatived by a Division Bench of this Court wherein it was held that the meeting held for the purpose of electing the President and Vice President of the Taluk Board was also the meeting of the Taluk Boad in which the members of the Legislative Assembly were entitled to participate and vote. ( 10 ) NOW I will examine Whether the Rules go beyond the provisions of the Act or make provisions contrary to or derogatory to the provisions of the Act. ( 10 ) NOW I will examine Whether the Rules go beyond the provisions of the Act or make provisions contrary to or derogatory to the provisions of the Act. ( 11 ) THERE is no doubt and it is a settled position of law that subordinate legislation cannot travel beyod or be contrary to the. principal enactment of the legislature. There fore, the Rules framed by the State Government under the Act in exercise of its rule-making power conferred by the Act cannot travel beyond and provide contrary to the Provisions of the Act. It is not disputed that the state Government is the repository of the powers conferred under Section 165 (3) and 284 of the act to frame the Rules for the purposes of Sections 165 in particular and to carry out the purposes of the Act in general. Learned Counsel for the petitioner is justified in conceding the position that the State Government has the power to make rules. ( 12 ) THE Rules defines the expression 'member'.--Rule 2 (b) provides that 'member' means an elected member and an associate member specified in Sub-sections (1) and (2) of Section 139 and includes a person entitled to take part in the proceedings and entitled to vote at the meeting of the Zilla Parishad under Sub-section (3) of Section 139. Thus according to this definition, all the three categories of members enumerated in Section 139, are defined as members of Zilla parishad. It is also necessary to make it clear that by inclusion of the second category member. e. , Associate member for the purposes of the Rules, he is not enabled to vote at the election of the Adhyaksha and Upadhyaksha because Sub Rules (5) and (6) of Rule 3 have made this position clear by using the words 'motion is carried by a majority of persons entitled to vote and present at the meeting'. As per Clause (b) of Sub-section (2) of Section 139 of the Act, the second category member has no right to vote in the proceedings of the meeting of the Zilla parishad. As per Clause (b) of Sub-section (2) of Section 139 of the Act, the second category member has no right to vote in the proceedings of the meeting of the Zilla parishad. He is only entitled to participate in the proceedings of the Meeting held for the purpose of electing the Adhyaksha and Upadhyaksha but he has no right to vote in any of the meetings of the Zilla Parishad ( 13 ) SUB-RULE (1) of Rule 3 of the Rules provides that the election of Adhyaksha and upadhyaksha shall be held in the first meeting after the constitution or reconstitution of the Zilla parishad on such date as the Commissioner may fix and shall thereupon send to every member notice of the date so fixed. The contention raised in this regard is that whereas Section 165 (1) does not use the expression 'meeting', but in the Rule this expression is used. On a reading of sections 139, 165 and 170 (2) (b) of the Act together it is already held that the election of adhyaksha and Upadhyaksha is held at the first meeting of the Zilla Parishad. Therefore, it is not possible to hold that the expression 'meeting' used in Sub-rule (1) of Rule 3 is beyond the rule-making power of the State Government. ( 14 ) AS far as Sub-rule (2) of Rule 3 is concerned, it only provides for giving notice of motion in writing addressed to the Commissioner by any member that another member be chosen as the adhyaksha and Udhyaksha as the case may be. Such notice shall have to be seconded by the member and accompanied by a statement by the member whose name is proposed in the notice, that he is willing to serve as Adhyaksha or Upadhyaksha if elected, It further provides that a member is note ntitled to propose his own name or second a motion proposing his own name or propose or second more than one motion. I have already pointed out that the Explanation to sub-rule (2) of Rule 3 is not challenged. ( 15 ) SUB-RULE (3) of Rule 3 provides that notice of motion referred to in Sub-rule (2) shall be delivered to the Commissioner in person by the candidate, proposer or seconder and a notice not so delivered in person shall not be valid. ( 15 ) SUB-RULE (3) of Rule 3 provides that notice of motion referred to in Sub-rule (2) shall be delivered to the Commissioner in person by the candidate, proposer or seconder and a notice not so delivered in person shall not be valid. It is not possible to find fault with this rule because it ensures hat the notice of motion is genuine and the member who is proposed to be chosen for the office of Adhyaksha or Upadhyaksha has consented to it. Such a rule excludes the possibility of several controversies being raised as to time a which it is delivered and as to who has proposed and seconded and whether the proposed candidate is willing or not. ( 16 ) SUB-RULE (4) of Rule 3 provides that a member in whose name a motion stands in the list of business, may when called, move the motion or withdraw the motion in which case he shall confine himself to a mere statement to that effect. It is also not possible to find fault with this sub-rule. It only enables the member in whose name the motion stands to state in the meeting of the Zilla Parishad as to whether he intends to pursue the motion or not. The rule enables the member proposed to be chosen to assess the latest situation and take a fresh decision as to contest or not. It helps such member to withdraw from the contest if he has no support of the majority, thereby this sub-rule helps to reduce the number of candidates in the contest. ( 17 ) SUB-RULES (5), (6) and (7) of Rule 3 are as follows : "5) The motions which have been moved and duly seconded shall be put to vote one by one in the order in which they have been moved and decided, if necessary by division. If any motion is carried by a majority of persons entitled to vote and present at the meeting, the person presiding shall without putting later motions declare that the member proposed in the motion which has been carried has been chosen as the Adhyaksha or Upadhyaksha. If any motion is carried by a majority of persons entitled to vote and present at the meeting, the person presiding shall without putting later motions declare that the member proposed in the motion which has been carried has been chosen as the Adhyaksha or Upadhyaksha. 6) If no motion is carried by a majority of persons entitled to vote and present at the meeting, the person presiding shall declare that the member proposed in the motion which has received the highest number of votes has been chosen as the Adhyaksha or Upadhyaksha. 7) If members proposed in two or more motions have received the same number of votes, the person presiding shall declare that the member determined by lot among them has been chosen as the Adhyaksha or Upadhyaksha. " ( 18 ) I have reproduced these sub-rules because the grievance of the petitioner centres around these sub-rules and Sub-rule (2) of Rule 3, Sri Subbaiah submits that Section 165 of the Act provides for election of two elected members as Adhyaksha and Upadhyaksha by ballot and not by moving the notice of motion in the meeting and putting it to vote if necessary by division. According to learned Counsel, election means election by secret ballot and not by moving notice of motion and taking votes by raising hands or by voice for or against the motion. If the legislature intended that the election of Adhyaksha and Upadhyaksha should be held by secret ballot, it would not have failed to provide in so many words. The legislature was quite well aware of the difference in these two modes of election. It has, in the case of election of members to Zilla Parishad, specifically provided in Section 156 of the Act that elections to the Zilla parishad shall be held by ballot and has made several provisions in this regard. Whereas in the case of election of Adhyaksha and Upadhyaksha it has only used the expression "choose" two members of the Zilla Parishad elected under Sub-section (1) of Section 139 to be respectively adhyaksha and Upadhyaksha. Of course, the manner and mode of election and determination of disputes relating to the election of Adhyaksha and Upadhyaksha have been left out to be covered by the Rules to be made under Sub-section (3) of Section 165 of the Act. Of course, the manner and mode of election and determination of disputes relating to the election of Adhyaksha and Upadhyaksha have been left out to be covered by the Rules to be made under Sub-section (3) of Section 165 of the Act. When the Act specifically provides that elections to the Zilla Parisha shall be held by secret ballot and it does not say so in respect of the election to the office of Adhyaksha and Upadhyaksha, it is not possible to hold that the legislature has intended that the election to the office of Adhyaksha and upadhyaksha must be held by secret ballot. In this regard, it has to be remembered that the Act and the Rules framed thereunder do recognise that the elections to the Zilla Parishad can be fought on the political party-lines as nominees of a recognised political party or parties. In fact, the Rules framed under the Act regarding elections to Zilla Parishad do reserve symbols of recognised political parties and those symbols are allotted to the nominees of such recognised political parties. Thus a person elected as a member of Zilla Parishad as a nominee of a particular recognised political party, he is not entitled to vote against that political party in the proceedings of the meeting of the Zilla Parishad. In such an event, he will be disqualified for being such member and will lose his seat in the Zilla Parishad as per the provisions contained in the karnataka Local Authorities (Prohibition of Defection Ordinance, 1986 (Karnataka Ordinance no. 18/ 1986 ). Therefore, when the very composition of the Zilla Parishad under the Act is made on the recognised political party-lines, whichever recognised political party secures the majority of the number of members of the Zilla Parishad will be able to have two of its elected members elected to the office of Adhyaksha and Upadhyaksha. As such, as to which recognised political party is going to have its elected members elected to the offices of Adhyaksha and Upadhyaksha, becomes known to one and all as soon as the composition Of the Zilla Parishad is complete. That being so, there is nothing wrong in providing for holding the election of Adhyaksha and upadhyaksha by moving the notice of motion and taking the votes of members entitled to vote and present in the meeting. That being so, there is nothing wrong in providing for holding the election of Adhyaksha and upadhyaksha by moving the notice of motion and taking the votes of members entitled to vote and present in the meeting. The rule by majority is one of the basic principles of democracy. Therefore, it is not possible to hold that the mode and manner of election to the offices of adhyaksha and Upadhyaksha provided under Sub-rules (2) to (7) of Rule 3 of the Rules are violative of Section 165 or Section 284 of the Act. ( 19 ) OF course, if the rule-making authority had provided for holding election to the offices of adhyaksha and Upadhyaksha by secret ballot, that would have been also quite within the scope of the provisions of the Act. But the question is whether the provisions contained in the Rules are valid. I have already held that such a procedure cannot be held to be and is not violative of section 165 (1) of the Act. It is also not possible to hold that such a procedure defeats the objects and purposes of the Act. Election can be either by secret ballot or by accepting the motion by support of the majority of the members present and entitled to vote. Therefore, it is not possible to hold that Sub-rules (2) to (7) of Rule 3 are beyond the rule-making power of the State government. ( 20 ) SUB-RULE (8) of Rule 3 only provides for recording of the minutes of the meeting which is necessary as in the absence of such recording, there will be no record to evidence the proceedings of the meeting wherein the elections of Adhyaksha or Upadhyaksha are held. Therefore, it is not possible to hold that this sub-rule is beyond the rule-making power of the state Government. ( 21 ) LEARNED Counsel for the petitioner is justified in not advancing any argument against the validity of Rules 4 to 7 of the Rules which contain the provisions regarding the assumption of office by Adhyaksha and Upadhyaksha, reporting of vacancy, filling up of casual vacancies, filing of election petition and determination of the same. Such provisions are necessary and the same are quite in order. Such provisions are necessary and the same are quite in order. ( 22 ) THE View expressed in Chencha Reddy's case is also similar to the one I have taken in this case on examination of the relevant provisions of the Act and the Rules. On comparison of the relevant provisions of both the enactments, I am satisfied that they are in pari materia except that the powers enjoyed by the Zilla Parishad are of greater magnitude and cover several subjects including implementation of several development plans than those enjoyed by the defunct Taluk boards. But that should not make any difference for the purpose of placing interpretation of the provisions which are in pari materia. That being so, it is not possible to hold that the aforesaid decision of a Division Bench of this Court does not have any bearing on the questions raised in this petition. Even otherwise, I have independently of that decision on examination of the relevant provisions of the Act, come to the conclusion that the Rules, to the extent the same are challenged are valid. Therefore, it is not necessary to consider Chencha Reddy's case, 1961 Mys. L J. 213 in greater detail. ( 23 ) I may also refer to another decision of my learned Brother Desai, J. rendered in D. B. Kalmankar v. State of Karnataka, W. P. No. 2052 of 4987 DD 18-2-1987 wherein His Lordship in a short and lucid order, following the decision in Chencha Reddy's case, 1961 Mys. L J. 213 has held that the third category members are members of Zilla Parishad and are entitled to participate and vote at the proceedings of the meeting of the Zilla Parishad held for the purpose of electing Adhyaksha and Upadhyaksha ( 24 ) NO other contention is urged or has remained to be considered. ( 25 ) FOR the reasons stated above, the petition fails and it is dismissed. However, in the circumstances of the case, there will be no order as to costs. ( 26 ) BEFORE parting with the case, it is necessary to point out that in the proviso to Rule 7 of the rules, after the words "such other candidate shall", the word 'not' has been left out in the Gazette notification. In the absence of such a word, the proviso does not convey the meaning which it is intended to convey. In the absence of such a word, the proviso does not convey the meaning which it is intended to convey. It must have been the printers' devil. As such it can be corrected. Learned advocate General submits that necessary corrigendum will be issued.