JUDGMENT : By this writ petition, a challenge is made to the Rajasthan Municipalities (Motion of no confidence against Chairperson or Vice-Chairperson) Rules, 2017 (in short “the Rules of 2017”) and to declare No Confidence Motion against the petitioner to be illegal along with grant of consequential reliefs. BRIEF FACTS OF THE CASE: 2. The petitioner was elected as Chairperson of Municipal Council, Dausa. While he was holding the post, a notice for No Confidence Motion was served on him. A meeting was thereafter held and motion was carried out against the petitioner. The participation in the meeting was only of the elected members. It is in consonance to the Rules of 2017. The grievance of the petitioner is regarding non-participation of Members of Parliament and Legislative Assembly being ex-officio members. It is by taking an erroneous interpretation of definition of “eligible member” given under Rule 2(1)(b) of the Rules of 2017. The definition aforesaid excludes only nominated members. If it excludes exofficio members then definition given under Rule 2(1)(b) of the Rules of 2017 is contrary to the provisions of the Rajasthan Municipalities Act, 2009 (for short “the Act of 2009”) so as Article 243R of the Constitution of India. In view of the above, a challenge has been made to the constitutional validity of the Rules of 2017 so as the No Confidence Motion. 3. Learned counsel for petitioner submits that once a Chairperson is elected, he can be removed save with the No Confidence Motion. It is as per amended provision of Section 53 of the Act of 2009. The earlier provision was for recall of Chairperson but was amended. The meeting of No Confidence Motion is to be held as per procedure given under the Rules of 2017. The definition of “eligible person” under Rule 2(1)(b) of the Rules of 2017 includes elected members of a Municipality but exclude the nominated members. It is silent on the ex-officio member by virtue of their office being Members of Legislative Assembly and Parliament. 4. The Members of Legislative Assembly and Parliament were not allowed to participate in the meeting held for No Confidence Motion and, for that reason, the meeting vitiated and, otherwise, would not have been carried out. It is silent on the ex-officio member by virtue of their office being Members of Legislative Assembly and Parliament. 4. The Members of Legislative Assembly and Parliament were not allowed to participate in the meeting held for No Confidence Motion and, for that reason, the meeting vitiated and, otherwise, would not have been carried out. If interpretation of Rule 2(1)(b) of the Rules of 2017 excludes ex-officio member from the definition of “eligible member” then it would be illegal being contrary to the definition of “member” given under Section 2(xxxvi) apart from definition of “whole number” or “total number” given under Section 2(Lxxiii) and Section 6 of the Act of 2009. 5. A reference of Section 6 of the Act of 2009 has been given to show composition of Municipality. If three provisions, referred above, are read together then would show that whoever is lawfully member of the Municipality and included in the composition of Municipalities, cannot be denied right of vote. It is moreso when Section 6 of the Act of 2009 gives right of vote to the ex-officio members. It has been denied to the nominated members. 6. It is also stated that respondents have failed to make distinction between three type of members which are elected members, nominated members and, lastly, ex-officio members. The nominated members cannot participate in the meeting for No Confidence Motion but exclusion does not exist for the ex-officio member. In view of the above, a prayer is to struck down Rule 2(1)(b) of the Rules of 2017 so as No Confidence Motion. 7. Learned counsel for petitioner has cited judgment of the Division Bench of this court in the case of Yogesh Chandra Saini & Ors. Vs. State of Rajasthan & Ors., reported in 2002 (1) DNJ 208 . A further reference of recent judgment of the Karnataka High Court in the case of Sultan Ali & Anr. Vs. Shahajaha & Ors., W.A. Nos.200299-300/2015 (LB-RES), decided on 8th October, 2015 has been given where similar controversy was decided in favour of the petitioner. 8. Learned Advocate General has contested the writ petition. It is submitted that there is no illegality in the definition of “eligible member” under Rule 2(1)(b) of the Rules of 2017. In No Confidence Motion, only elected members can participate and not the nominated members. 8. Learned Advocate General has contested the writ petition. It is submitted that there is no illegality in the definition of “eligible member” under Rule 2(1)(b) of the Rules of 2017. In No Confidence Motion, only elected members can participate and not the nominated members. It is on the analogy that when election of a Chairperson or a Vice-Chairperson is by the elected members then No Confidence Motion has to be by the elected members alone and not by the nominated members. On the aforesaid analogy, rules have been framed. 9. It is further submitted that petitioner has made reference of Sections 2(xxxvi) and 2(Lxxiii) defining the words “Member” and “whole number” or “total number” and also Section 6 of the Act of 2009 ignoring Sections 51 and 52 of the Act of 2009. The definition of “member” or “whole member” and Section 6 of the Act of 2009 are applicable for it only. Section 53 of the Act of 2009 is exception to Sections 51 and 52 of the Act of 2009. The petitioner has failed to make difference between the nature of meetings. The definitions of “member” and “whole number” or “total number” of the Municipalities have been given in reference to Section 51 of the Act of 2009. It is meeting for the business of the Municipalities and not for No Confidence Motion. 10. It is also stated that ex-officio members come from political parties and if they are allowed to participate in No Confidence Motion, it will create anarchy and, therefore, rightly denied right of vote. 11. Learned Advocate General has made reference of the earlier Rules of 1974. It is even Rules of 2012 for No Confidence Motion for Vice-Chairperson. It is apart from a reference of settled practice for No Confidence Motion. The ex-officio members being Member of Legislative Assembly and Parliament are not allowed to participate in the No Confidence Motion. A reference of judgment of the Division Bench of this court in the case of Prem Raj Bohra & etc. Vs. Jairoopa & Ors., reported in AIR 2003 Raj. 128 has been given, wherein, earlier judgment in the case of Yogesh Chandra Saini (supra) was also considered. It has been held that only elected member can participate in the No Confidence Motion and not the nominated members. 12. Vs. Jairoopa & Ors., reported in AIR 2003 Raj. 128 has been given, wherein, earlier judgment in the case of Yogesh Chandra Saini (supra) was also considered. It has been held that only elected member can participate in the No Confidence Motion and not the nominated members. 12. A further reference of judgment of the Supreme Court in the case of Ramesh Mehta Vs. Sanwal Chand Singhvi & Ors., reported in (2004) 5 SCC 409 has been given. Therein, view taken by the Division Bench in the case of Prem Raj Bohra (supra) was upheld. The Apex Court, in no uncertain terms, held that only elected member can participate in the motion for no confidence and not the nominated members. 13. Learned Advocate General has further placed reliance on the judgment of the Punjab & Haryana High Court where similar challenge was not accepted. It is in the case of Sanjeev Kumar Verma Vs. The Director, Urban Local Bodies, Chandigarh & Ors., CWP No.15125/2012 along with connected matter, decided on 6th February, 2013. The judgment of Punjab & Haryana High Court supports the argument. A prayer is, accordingly, to dismiss the writ petition and if at all this court comes to the conclusion that definition of “eligible member” given under Rule 2(1)(b) of the Rules of 2017 is ultra vires then judgment may be made prospective. 14. It is also stated that case set up by the petitioner is in reference to unamended provision of Section 53 for recall of the Chairperson. The petitioner suppressed the amended provision of No Confidence Motion thus in the light of the aforesaid also, writ petition deserves to be dismissed. 15. We have considered rival submissions made by learned counsel for the parties and perused the record. 16. By this writ petition, a challenge is made to the No Confidence Motion brought against the petitioner and Rule 2(1)(b) of the Rules of 2017 defining “eligible member”. For ready reference, the provision is quoted hereunder for ready reference: “2(1)(b) “Eligible Member” means elected members of a Municipality but shall not include nominated members and any member disqualified or suspended under the provisions of the Act.” 17. The “eligible member” means elected members of a Municipality and exclude nominated members apart from any member disqualified or suspended under the provisions of the Act. The definition does not talk about ex-officio Members. The “eligible member” means elected members of a Municipality and exclude nominated members apart from any member disqualified or suspended under the provisions of the Act. The definition does not talk about ex-officio Members. It is the Members of Legislative Assembly and Parliament. The provision aforesaid is silent in respect of those members. The aforesaid is only one part. 18. The challenge to the definition has been made in reference to the definitions of “member” and “whole number” or “total number” given under Section 2(xxxvi) and Section 2(Lxxiii) of the Act of 2009. Both the definitions are quoted hereunder for ready reference: “2(xxxvi) “member” means any person who is lawfully a member of a Municipality and includes, in case of a Municipal Corporation, a corporator, in case of a Municipal Council, a councillor and in case of a Municipal Board, a member. 2(Lxxiii) “whole number” or “total number” when used with reference to the members of a Municipality, means the total number of members, excluding the members nominated under sub-clause (ii) of clause (a) of sub-section (1) of section 6, holding office at the time.” 19. The definition of “member” given under the Act of 2009 means any person who is lawfully member of a Municipality and includes others given therein. The definition of “whole number” or “total number” means the total number of members, excluding the members nominated under sub-clause (ii) of clause (a) of subsection (1) of section 6 of the Act of 2009. Section 6 is quoted thus: “Sec. 6. The definition of “whole number” or “total number” means the total number of members, excluding the members nominated under sub-clause (ii) of clause (a) of subsection (1) of section 6 of the Act of 2009. Section 6 is quoted thus: “Sec. 6. Composition of Municipality.-(1) Subject to the provisions contained in the succeeding sub-sections, but save as provided in the following provisions of this sub-section, all seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the number of such seats, not being less than thirteen, being fixed by the State Government from time to time by notification in the Official Gazette:- (a) the following shall represent in the Municipal Board, Municipal Council or, as the case may be, Municipal Corporation, viz:- (i) the member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a Municipality; and (ii) six persons in case of Municipal Corporation, five persons in case of Municipal Council and four persons in case of Municipal Board, having special knowledge or experience in municipal administration, to be nominated by the State Government by notification in the Official Gazette: Provided that- (i) the provisions contained in section 24 and section 35 shall be applicable to the persons to be nominated or nominated members; (ii) the State Government shall have power to withdraw a nominated member at any time; (iii) a nominated member shall not have the right to vote in the meetings of a Municipality; (b) the member of the House of the People representing a constituency which comprises wholly or partly the area of a Municipal Council or, as the case may be, a Municipal Corporation shall represent on such Council or such corporation: Provided that the member referred to in sub-section (i) of clause (a) shall have a right to vote in the meetings of a Municipal Board, a Municipal Council or, as the case may be, a Municipal Corporation, and the member referred to in clause (b) shall have a right to vote in the meetings of a Municipal Council or Municipal Corporation: Provided further that the members referred to in sub-clause (i) of clause (a), and clause (b), shall not be subject to any disqualification or any other proceedings under the provisions of this Act. (2) Upon the completion of each census after the establishment of the Municipality, the number of seats shall be re-determined by the State Government by notification in the Official Gazette on the basis of the population of the municipal area as ascertained at the latest census: Provided that the determination of seats as aforesaid shall not affect the existing composition of the Municipality until the expiry of its term. (3) In so fixing the total number of seats for a Municipality, the State Government shall specify the number respectively of general seats and of seats reserved for women and for members of the Scheduled Castes or for members of the Scheduled Tribes or for both or persons belonging to the Backward Classes as if may in each case determine. (4) The number of seats reserved for members of Scheduled Castes or Scheduled Tribes shall, in relation to the total number of seats fixed for a Municipality, bear as nearly as may be, the same proportion as the population of the Scheduled Castes or Scheduled Tribes in the municipal area bears to the total population thereof. (5) The percentage of seats reserved for the Backward Classes shall be such as the percentage of the combined population of Scheduled Castes and Scheduled Tribes in relation to the total population in the municipal area falls short of fifty: Provided that the percentage of seats so reserved for the Backward Classes shall not exceed twenty-one: Provided further that at least one seat shall be reserved for the Backward Classes in every Municipality where the percentage of the combined population of Scheduled Castes and Scheduled Tribes in relation to the total population in the municipal area does not exceed seventy. (6) One half of the seats reserved for the Scheduled Castes or the Scheduled Tribes or the Backward Classes shall be reserved for the women belonging to such Castes, Tribes or, as the case may be, Classes. (7) One half including the number of seats reserved under sub-section (6) of the total number of seats shall be reserved for women. (8) The reservation of seats for Scheduled Castes and Scheduled Tribes and the Backward Classes under subsections (3), (5), and (6) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution of India. (8) The reservation of seats for Scheduled Castes and Scheduled Tribes and the Backward Classes under subsections (3), (5), and (6) shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution of India. (9) All the seats fixed for a Municipality, general as well as reserved, shall be filled up by direct election from the wards in the municipal area and such election shall be held in the prescribed manner. Explanation.-If a fraction forms part of the number of seats computed under this section, the number of seats shall be increased to the next higher number in case the fraction consists of half or more of a seat and the fraction shall be ignored in case it consists of less than half of a seat.” 20. Section 6 of the Act of 2009 provides about composition of Municipality which includes elected members, Members of Legislative Assembly and Parliament apart from nomination of six persons in case of Municipal Corporation, five persons in case of Municipal Council and four persons in case of Municipal Board. It further provides for right to vote. The exclusion to the right of vote is of the members falling under Section 6(1)(a)(ii) and not of members falling under Section 6(1)(a)(i) and (b) of the Act of 2009, rather, voting right in the meeting has been given. If we proceed as per definitions of “member” and “whole number” or “total number” read with Section 6 of the Act of 2009, it can safely be concluded that while nominated member has no right to vote, Members of Legislative Assembly and Parliament have been given right of vote. 21. At this stage, we need to deal with the issues raised by learned Advocate General in reference to Sections 51, 52 and 53 of the Act of 2009. The provisions aforesaid are quoted hereunder: “51. Provisions in regard to meetings of a Municipality.- (1) There shall be an ordinary general meeting of the Municipality once within sixty days and minimum six meetings in a calendar year and the business of the meeting shall be conducted in accordance with such procedure as may be prescribed. The provisions aforesaid are quoted hereunder: “51. Provisions in regard to meetings of a Municipality.- (1) There shall be an ordinary general meeting of the Municipality once within sixty days and minimum six meetings in a calendar year and the business of the meeting shall be conducted in accordance with such procedure as may be prescribed. (2) The Chairperson shall call a special meeting for a date not more than seven days from the date of receiving a request in writing signed by not less than one-third of elected members of the Municipality specifying the resolution, which is proposed to be moved. (3) If the Chairperson fails to call a special meeting within the time specified under sub-section (2), the Chief Municipal Officer shall call such meeting within ten days from the date on which the time specified in sub-section (2) expires. 52. Rights and privileges of individual members.- (1) Any member may call the attention of the proper authority to any neglect in the execution of a municipal work, to any wastage of municipal property or to the civic problems of any locality, and may suggest any improvement which, he considers desirable. (2) Every member shall have the right to put questions to the Chairperson and to move resolutions on matters connected with the administration of the Municipality, subject to the rules prescribed. (3) Every member shall have the right to inspect, without payment of any fees, records of the Municipality at the municipal office, after giving due notice to the Chief Municipal Officer. 53. (3) Every member shall have the right to inspect, without payment of any fees, records of the Municipality at the municipal office, after giving due notice to the Chief Municipal Officer. 53. Recalling of Chairperson and motion of no confidence against Vice-chairperson.-(1) Every Chairperson of a Municipality shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the Municipal area casting the vote in accordance with the procedure as may be prescribed: Provided that no such process of recall shall be initiated unless a proposal is signed by not less than threefourth of the total number of the elected Members and presented to the Collector concerned: Provided further that no such motion shall be lie against a Chairperson- (i) within two years of the assumption of office by the Chairperson; (ii) if half of the period of tenure of the Chairperson elected in a by-election has not expired: Provided also that process for recall of the Chairperson shall be initiated once in his whole term. (2) The Collector shall, after satisfying himself and verifying as expeditiously as possible but within a period of seven days that the three-fourth of the Members specified in sub-section (1) have signed the proposal of recall, fix a date for a meeting of the Municipality to be held within a period of fourteen days, which shall be presided over by an officer not below the rank of an Additional Collector nominated by him. (3) If a resolution expressing no confidence in the Chairperson is passed in that meeting, in the prescribed manner, by a majority of three fourth of the elected members of the Municipality and communicated to the State Government, the State Government shall make a reference to the State Election Commission. (4) On receipt of the said reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed. (5) Motion expressing no confidence in the Vice- Chairperson shall be made and considered in the prescribed manner. (6) No Notice of motion under sub-section (5) shall be made within two years of the assumption of office by a Vice-Chairperson. (5) Motion expressing no confidence in the Vice- Chairperson shall be made and considered in the prescribed manner. (6) No Notice of motion under sub-section (5) shall be made within two years of the assumption of office by a Vice-Chairperson. (7) If a motion under sub-section (5) is not carried, no notice of a subsequent motion expressing no confidence in the same Vice-Chairperson shall be made until after the expiration of two years from the date of the meeting in which the motion was considered.” 22. It is stated that Section 51 of the Act of 2009 applies for meeting of business of a Municipality. The meeting for No Confidence Motion cannot be taken to be for business of Municipality. We do not find substance in the argument. Section 51 describes for meeting and not the right of vote therein. There can be general and special meeting. Section 53 of the Act of 2009 is for motion for no confidence. It does not provide for vote to only elected member. In view of the above, an unnecessary confusion has been created by referring Sections 51 to 53 of the Act of 2009. It has nothing to do with right of vote. 23. Section 51 of the Act of 2009 talks about meetings and not for participation. How the meeting is to be called is also provided. It may, however, be true that meeting as per Section 51 of the Act of 2009 is for business of Municipalities. Section 52 of the Act of 2009 talks about rights and privileges of individual members. There, word “member” has been used and, according to the learned Advocate General, definitions of “member” and “whole number” or “total number” given under Section 2(xxxvi) and Section 2(Lxxiii) of the Act of 2009 are in reference to the aforesaid only and not in reference to Section 53 of the Act of 2009. 24. We are unable to accept the view for the reason that Section 53, as amended, does not exclude any member to participate in the meeting, rather, Section 53 has to be read with other provisions and more specifically, definition of “member” and Section 6 regarding composition of Municipalities. When Section 6 of the Act of 2009 gives voting right to the members of Parliament and Assembly than denial of vote by subordinate legislation would not be permissible. When Section 6 of the Act of 2009 gives voting right to the members of Parliament and Assembly than denial of vote by subordinate legislation would not be permissible. The rules cannot be made in conflict to any provision of the Act. The conjoint reading of Sections 6 and 53 gives answer as to who can vote in a meeting for motion of no confidence. If we accept exclusion of ex-officio members despite their inclusion under Section 6 or debar them from voting right, it would hit Section 6 of the Act of 2009. In view of the above, reference of Sections 51 and 52 of the Act of 2009 does not provide any assistance for determination of the issues raised herein. 25. The issue aforesaid has otherwise been considered by this court on two occasions and even by the Apex Court thus it would be relevant to refer earlier judgment of this court. The first judgment was in the case of Yogesh Chandra Saini (supra). Therein, it was held that an ex-officio member has right to vote. It is by referring Article 243R of the Constitution of India and, therefore, it would be relevant to quote aforesaid Article for ready reference:- “243R. Composition of Municipalities.-(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of- (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of article 243S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality; (b) the manner of election of the Chairperson of a Municipality.” 26. The provision aforesaid shows composition of Municipalities. It may consist three categories. The provision aforesaid shows composition of Municipalities. It may consist three categories. The first is elected members, others are nominated and third are members by virtue of their office i.e. members of the House of people and Legislative Assembly. The exclusion from voting right is only of nominated member, as given under proviso. It excludes members under Clause 2(a)(i) of Article 243R of the Constitution of India. It does not exclude other categories. If we exclude members of the House of people or Assembly then it would be nothing but rewriting Article 243R of the Constitution of India. 27. The Division Bench of this court in the case of Yogesh Chandra Saini (supra) had considered the issue extensively and decided it against the respondents. 28. After the judgment aforesaid, issue again came up for consideration before the Division Bench of this court in the case of Prem Raj Bohra (supra). Therein, the Division Bench held that it is the elected members who can participate in the meetings for No Confidence Motion and not the nominated members. The argument was dealt with in reference to the controversy raised therein. In the aforesaid judgment, earlier judgment in the case of Yogesh Chandra Saini (supra) was also considered. Ultimately, the case of Ramesh Mehta (supra) was decided by the Apex Court. The Apex Court held that in No Confidence Motion, elected members can participate and not the nominated members. The controversy therein was not in respect of members by virtue of their office i.e. ex-officio members. If facts of the case of Ramesh Mehta (supra) are taken into consideration minutely, the vote of ex-officio member was not excluded while counting the vote for consideration of no confidence motion. The exclusion was only of nominated member. Para 2 of the said judgment is quoted hereunder to show facts of that case: “2. For sake of convenience, we refer to the facts in Civil Appeal No.6133 of 2002. On 19.8.2000, elections were held for the Municipal Board, Sanchar, district Jalore. The appellant Ramesh Mehta was elected as Chairperson of the Municipal Board. On 24.10.2000, the State Government nominated two members on the Board. On 6.10.2001, the total number of members of the municipal board consisted of 20 elected members, 2 nominated members and one MLA (Ex-officio). Thus, the total number of members on 6.10.2001 were 23. The appellant Ramesh Mehta was elected as Chairperson of the Municipal Board. On 24.10.2000, the State Government nominated two members on the Board. On 6.10.2001, the total number of members of the municipal board consisted of 20 elected members, 2 nominated members and one MLA (Ex-officio). Thus, the total number of members on 6.10.2001 were 23. On that day, the no confidence motion was moved against the Chairperson, in which 15 members voted for the motion. The motion was conducted by the SDO, Sanchar as a nominee of the Collector, Jalore. According to the SDO, the no confidence motion stood carried out as the whole number of members on the board, excluding the nominated members, was 21 and 2/3rd of 21 was 14, against which 15 members voted for the motion. According to the appellant, the decision of SDO was erroneous as the whole number of members of the board was 23 and not 21 as determined by the SDO and 2/3rd of 23 being 15.33, the motion stood defeated. The decision of the SDO was challenged by the appellant herein in the High Court by filing petition no.4178 of 2001. By judgment and order dated 21.5.2002, the learned Single Judge of the Rajasthan High Court, Jodhpur Bench held that in counting the whole number of members, nominated members have also to be taken into account even though they had no right to vote. The learned Single Judge relied upon the judgment of this Court in the case Raees Ahmad v. State of U.P. reported in [ (2000) 1 SCC 432 ]. Aggrieved by the decision, the respondent herein carried the matter in appeal to the Division Bench of the High Court, which took the view that the expression "whole number of members" used in rule 3(9) of Rajasthan Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules, 1974 (hereinafter referred to as "the 1974 Rules") excluded nominated members. It was observed by the Division Bench that the said rule 3(9) of the 1974 Rules is required to be read with section 3(36) and section 9 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the Act") and if so read, the expression "whole number of members" would exclude nominated members. Consequently, the appeal was allowed and the decision of the SDO was confirmed. Consequently, the appeal was allowed and the decision of the SDO was confirmed. Hence, the original petitioner, the ousted Chairman of the Municipal Board has come by way of civil appeal. The question herein is common in all civil appeals herein.” 29. In the aforesaid judgment, No Confidence Motion was on the basis of 21 members which include 20 elected, one ex-officio member. It was after excluding 2 nominated members. The argument before the Apex Court was in reference to exclusion of nominated members and not of ex-officio (MP and MLA) members. Taking into consideration the aforesaid, the controversy was decided in reference to nominated members. It is as to whether they are having right of vote. It was not for ex-officio members, rather, facts show inclusion of vote of member of Assembly. It has not been held that ex-officio members cannot participate in the meeting. Accordingly, we are of the opinion that in the No Confidence Motion, nominated members cannot participate but neither provisions of the Act nor Constitution of India has excluded ex-officio member being Members of Legislative Assembly or Parliament from voting right. 30. If we take a view that ex-officio members cannot participate in the meeting of No Confidence Motion, it would hit Section 2(xxxvi) defining the word “member” so as Section 2(Lxxiii) defining the words “whole number” or “total number” and Section 6 of the Act of 2009 apart from Article 243R of the Constitution of India as it has not excluded ex-officio member from right of voting. Section 6 of the Act of 2009 and the Constitution of India excludes vote of nominated members only. Section 6 of the Act of 2009 gives right of voting to ex-officio members (MP and MLA) thus Rule 2(1)(b) of the Rules of 2017 cannot be allowed to stand contrary to it. 31. The reference of judgment of Punjab & Haryana High Court in the case of Sanjeev Kumar Verma (supra) has been given. Therein, issue was raised on the same ground as is before us i.e. voting right of the ex-officio members. We find that provision, as existing under Section 6 of the Act of 2009, has not been considered. 31. The reference of judgment of Punjab & Haryana High Court in the case of Sanjeev Kumar Verma (supra) has been given. Therein, issue was raised on the same ground as is before us i.e. voting right of the ex-officio members. We find that provision, as existing under Section 6 of the Act of 2009, has not been considered. The judgment aforesaid has been given after relying judgment of Apex Court in the case of Ramesh Mehta (supra) and also of this court where issue was not about voting right of exofficio member but of nominated member. The reference of proviso to Article 243R of the Constitution of India was not given in specific terms by the lawyers appeared therein. Against the aforesaid, a recent judgment has been given by the Karnataka High Court in the case of Sultan Ali & Anr. (supra). The issue raised has been elaborately discussed therein and, for ready reference, Paras 8, 9, 10, 11 & 52 are quoted hereunder: “8. The principal submissions made by Mr. Sachin Mahajan representing the appellants is that the order passed by the learned single Judge is contrary to law and that Section 11 of the Act makes it abundantly clear that only nominated members of the Council who are mentioned in clause (b) of Section 11(1) of the Act are ineligible for voting. According to him, on a conjoint reading of sub-section (6) of Section 2 and Sections 11 and 49 of the Act, it becomes clear about the right of MLAs and MPs in voting. It is his case that Article 243R of the Constitution of India has inhibited only the nominated members from having voting right, but ex-officio members being elected representatives of a larger constituency which includes the city of Basavakalyan, have a right to vote. He has vehemently argued that even the Constitution of India guarantees MLAs and MPs the right to vote, whether in a special or general meeting. 9. He has relied on a decision rendered in the case of CHANDU BI (supra) to contend that though the point formulated for consideration in the said decision was in regard to quorum, and in essence the Division Bench has indirectly accepted the voting right of MPs and MLAs. He has relied on a decision of the Hon'ble apex court in the case of Ramesh Mehta Vs. He has relied on a decision of the Hon'ble apex court in the case of Ramesh Mehta Vs. Sanwalchand, [2004] 5 SCC 409 to contend that the provisions of the Act will have to be read in the light of the revolutionary amendments brought out to the Constitution in the year 1994 to Article 243. He has further argued that even otherwise, the scheme of the Karnataka Municipalities Act and amendments carried out from time to time specifically demonstrate that MLAs and MPs do have a voting right in city municipal council meetings, whether general or special. 10. Mr. Vilaskumar, learned Govt. Advocate representing the State of Karnataka and Deputy Commissioner, has relied on the commentary by Dr. D.D. Basu Eighth Edition, Vol. 8. It is brought to the notice of this court the object and reasons for amending Article 243 of the Constitution by inserting sub-article R in the year 1994. The purpose, according to Mr. Vilaskumar, sought to be achieved is to give to the members of Legislatures and Parliament a right not only to participate, but also to exercise their vote in the council meetings and thereby strengthening the democracy. 11. He has relied on a decision of the Constitutional Bench in the case of Kuldeep Nair Vs. Union of India, AIR 2006 SC 3048 . He has argued that in the case of RAMESH MEHTA (supra) decided by a Bench consisting of 3 Hon'ble Judges, the voting right of an elected MLA or MP has been taken note of while arriving at 2/3rd majority, in the event of no-confidence motion being moved. 52. This court is unable to accept the contention of Sri Gurumath that the consideration by the Hon'ble apex court in the case of RAMESH MEHTA of keeping out MLAs for computing 2/3rd majority required to remove a President in spite of a positive voting right being granted to them under the provisions of The Rajasthan Municipalities Act, is relevant, while interpreting the provisions of the Karnataka Municipalities Act, 1964. On the other hand, the apex court has taken cognizance of the voting right of elected MLAs in no-confidence motion and if that was not the intention of the Legislature, the vote exercised by MLAs would not have been taken into consideration while computing the total number of members present and voting.” 32. On the other hand, the apex court has taken cognizance of the voting right of elected MLAs in no-confidence motion and if that was not the intention of the Legislature, the vote exercised by MLAs would not have been taken into consideration while computing the total number of members present and voting.” 32. The conclusions have been drawn after discussing the entire issue in reference to provisions of the Act and the Constitution of India. Therein, judgment of the Apex Court in the case of Ramesh Mehta (supra) has also been considered. The aforesaid supports the argument raised by learned counsel for petitioner. 33. In view of the aforesaid, we are of the view that if definition of “eligible member” given under Rule 2(1)(b) of the Rules of 2017 excludes ex-officio members (MP and MLA) then it is hit by Sections 2(xxxvi), 2(Lxxiii) and Section 6 of the Act of 2009 and otherwise Article 243R of the Constitution of India providing composition of Municipalities. The proviso under Article 243R of the Constitution of India excludes voting right of nominated member only and not of members of the House of people or Assembly, Section 6 of the Act of 2009 gives voting right to them. The definition of “eligible member” does not exclude ex-officio members as it is silent thus by applying the doctrine of reading down, it can be concluded that ex-officio members are not excluded from the definition thus would be eligible to vote in the meeting of No Confidence Motion. In the alternative to struck down the definition of “eligible member”. 34. It has been argued that voting right in the meeting of No Confidence Motion has been given to those who participate in the election. We cannot accept aforesaid proposition when it goes against Article 243R of the Constitution of India so as section 6 of the Act of 2009. If intention would have been to deny right of voting to ex-officio members in the meeting, the Constitution of India and provisions of the Act would have been framed accordingly as otherwise it exist for nominated member. It is as per the proviso to Article 243R(2) and under Section 6 of the Act of 2009. Hence, argument raised by learned Advocate General cannot be accepted. 35. It is as per the proviso to Article 243R(2) and under Section 6 of the Act of 2009. Hence, argument raised by learned Advocate General cannot be accepted. 35. In view of the discussion made above, Rule 2(1)(b) of the Rules of 2017 is struck down if it excludes ex-officio member. 36. In the light of the aforesaid, we hold that ex-officio members i.e. Members of the House of people and the Assembly have right to vote in a meeting for no confidence motion. 37. In view of the above, no confidence motion vitiate due to exclusion of ex-officio members and is, accordingly, set aside. It is moreso if they would have been included for vote, the result could have been different as the no confidence motion was not carried by margin so as to ignore the vote of ex-officio members. 38. Learned Advocate General has prayed for application of judgment prospectively. 39. We find that by this judgment, interpretation of the provisions of law has been made after taking into consideration the Constitution of India. The interpretation cannot otherwise be given prospective effect, otherwise, past action would exist in violation of the Constitution of India. In any case, we made it clear that this judgment would apply only in the case where challenge has been made to the no confidence motion. If somebody has not challenged No Confidence Motion then would not be governed by this judgment. 40. The preliminary objections raised by learned Advocate General are not sustainable. The pleading of the writ petition would show not only in reference to Section 53 but other provisions as well. It may be that reference of unamended provision of Section 53 has been given but by virtue of it, other issues cannot be ignored for its adjudication. 41. In view of the discussion aforesaid, we allow the writ petition with the reliefs given above. 42. At this stage, learned Advocate General prays for stay of the operation of this order for a period of 15 days. It is submitted that similar controversy may come up before the Apex Court. In view of the above, prayer is accepted. The operation of this order is stayed for a period of 15 days.