Shivashankar Bhat, J.
1. W.A. No. 300/87 is by the petitioners in W.P. No. 2052/87. The appeal is against the order rejecting the Writ Petition in other respects and restricting its admission for the limited purpose of considering the validity of the Explanation to Rule 3(2) of the Karnataka Zilla Parishads (Election of Adhyaksha & Upadhyaksha) Rules, 1987 (hereinafter referred as ‘the Rules’). By this order the learned Single Judge upheld the validity of other provisions of the Rules. W.A. No. 340/87 is by the petitioner in W.P. No. 2301/87 against the order dismissing the Writ Petition.
2. The common question raised in both the Writ Petitions has to be decided in W. A. No. 340/8 7. Therefore, if is not necessary to go into the contention raised by Mr. Ron in WA. 300/87, that the learned Single Judge could not have restricted the admission of the Writ Petition to one particular question only. Similarly, it is also not necessary to decide the question whether an appeal lies at this stage against such an order when the Writ Petition is still pending before the learned single Judge.
3. It is necessary to clarify that, validity of the explanation to Rule 3(2), which is pending consideration in W.P. No. 2052/87, is not gone into in these appeals.
4. The appellants challenged the validity of the Rules’ since according to them, the Rules are ultra vires the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as ‘the Act’ instead of its lengthy and cumbersome nomenclature). They also contend that the framing of the Rules is a mala fide exercise of the statutory power, to gain political ends.
5. Some of the salient features of the Act and the Rules to the extent relevant for the purposes of these appeals may be referred before considering the various contentions urged.
6. The preamble to the Act refers to its objectives. It states that the Act was enacted to establish Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats in rural area. The purpose is to assign the local government and judicial functions and to entrust the execution of certain works and development schemes of the State Five Year Plans to them. The preamble envisages the decentralisation of powers and functions under certain enactments to these local bodies, so that the development of democratic institutions may be promoted and the participation by the people in the Five Year Plans and in local government affairs etc., may be secured.
7. “Zilla Parishad” is defined under Section 2(39) as to mean a Zilla Parishad constituted under the Act Chapter VIII provides for the constitution of Zilla Parishads. Section 138 refers to the establishment and incorporation Section 139 provides for the composition of a Zilla Parishad. This is one of the basic provisions, interpretation of which has been the subject of discussion in the course of arguments. It reads as follows :-
“139. Composition of Zilla Parishad :
(1) Every Zilla Parishad shall consist of elected members as is determined under Section 140.
(2)(a). The Chairman or President of the District Central Cooperative Bank shall be an associate member of the Zilla Parishad ;
(b) An associate member shall be entitled to take part in the proceedings of a Zilla Parishad but shall not have the right of vote. He shall not be entitled to hold the office of Adhyaksha or Upadhyaksha.
(3)(a). Subject to the provisions of Clause (b), the 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 Council not elected from territorial constituencies and ordinarily resident in the district shall be entitled to take part in the proceedings of and to vote at the meetings of the Zilla Parishad.
(b) The members of the State Legislative Assembly and the Legislative Council referred to in Clause (a) shall have the rights and be subject to the liabilities of the members of the Zilla Parishad except the right to hold the office of the Adhyaksha or Upadhyaksha.
(4) Notwithstanding anything contained in this Section or Sections 140, 141, 142 and 143, but subject to, any general or special orders of the Government where two-thirds of the total number of members of any Zilla Parishad required to be elected have been elected the Zilla Parishad shall be deemed to have been duly constituted under this Act”.
8. Section 153 prescribes the qualification for being chosen to fill a seat in a Zilla Parishad. Section 154 prescribes disqualification for being chosen and for being a member of a Zilla Parishad and Section 155 refers to disqualification of members. Section 159 says that the names of members elected shall be notified in the Official Gazette. Section 160 fixes the term of office of members elected at a general election as five years. Section 162 provides for resignation of and Section 168 for removal of a member. Section 164 provides for filling up of a casual vacancy.
9. Section 165 is another important provision requiring consideration, which is as follows :-
“165. Election of Adhyaksha, Upadhyaksha and terra of office : (1) Every Zilla Parishad shall, as soon as may be, choose two members of the Zilla Parishad elected under Subsection (1) of Section 139 to be respectively Adhyaksha or Upadhyaksha thereof and so often as there is a casual vacancy in the office of Adhyaksha, or Upadhyaksha the Zilla Parishad shall choose another member to be Adhyaksha or Upadhyaksha as the case may be :
Provided that no election shall be held if the vacancy is for a period of less than one month.
(2) Save as otherwise provided in this Act, the Adhyaksha or Upadhyaksha shall hold office for the term of office of the members of the Zilla Parishad.
(3) The election of the Adhyaksha or the Upadhyaksha of a Zilla Parishad and filling up of vacancies in the said offices and the determination of disputes relating to such election shall be in accordance with such rules as may be prescribed :
Provided that the authority to determine such election disputes shall be the District Judge having jurisdiction.”
10. Section 167(3) pertains to the removal of Adhyaksha and Upadhyaksha which reads as under :-
“Every Adhyaksha and every Upadhyaksha shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the total number of members of the Zilla Parishad at a meeting specially convened for the purpose.”
11. Sections 168 and 169 refer to power and duties of Adhyaksha and Upadhyaksha. As per Section 168 Adhyaksha shall be the Executive head of Zilla Parishad. Section 170 provides tor the meetings of Zilla Parishad. As Section 170(2) has come up for discussion in the course of arguments it is quoted below :-
“The date of the first meeting of the Zilla Parishad after the 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 day of the meeting to a subsequent date. The Adhyaksha may, whenever he thinks fit, and shall, upon the written request of not less than one-third of the total number of members and on a date within fifteen days from the receipt of such request, call a special meeting. Such request shall specify the object for which the meeting is proposed to be called. If the Adhyaksha fails to call a special meeting, the Upadhyaksha or one-third of the total number of members may tall the special meeting for a day not more than fifteen days after presentation of such request and require the Secretary to give notice to the members and to take such action as may be necessary to convene the meeting.”
12. Section 170(2)(c) provides for the quorum. As per Section 170(2)(d), every meeting of Zilla Parishad shall be open to the public unless the presiding authority consider it necessary to have it in camera. Section 171 provides tor interpellations and resolutions by members of Zilla Parishad Chapter IX enumerates the functions of Zilla Parishads. Chapter X refers to the property and finance of Zilla Parishad. As per Sections 269, 270 and 271(J), Zilla Parishads are given certain powers over Mandal Panchayats. Section 271(2) empowers the State Government to dissolve a Zilla Parishad. Section 272 provides for the appointment of an Administrator.
13. Having regard to the preamble and other provisions of the Act, it was argued by the Counsel for the appellants, that Zilla Parishads are vested with the decentralised powers of Government to implement developmental projects of the district, specially the rural areas and that they are to be truly elected local Governments. Therefore, it was argued that, Adhyaksha and Upadhyaksha of a Zilla Parishad should be elected, only by the properly elected members of Zilla Parishad. If any outsider has a right to vote and elect the Adhyaksha and Upadhyaksha, it will be contrary to the avowed objectives sought to be achieved by the Act, since the democratic structure will get altered by the Chief Executive of the Zilla Parishad being elected by persons who lack representative character.
14. Another contention was that the Act envisages “election” of Adhyaksha and Upadhyaksha; election means, a process with certain definite, accepted characteristics, one of which is secret ballot. Sri A.K. Subbaiah emphasised repeatedly that, it is a basic principle of a proper election that, it should maintain secrecy of voting and if this principel is contravened, it ceased to be an “election.” Therefore, he asserted that the Rules which provide for election by motion at a meeting which is open to the public, is clearly opposed to the provisions of the Act. In this regard, he brought to our notice Section 28 of the Act, providing for the maintenance of secrecy of voting.
15. The primary question is, whether the members of Legislature, members of Legislative Council and members of Parliament referred in Section 139(3) (a) and (b) [all collectively referred hereinafter as ‘the Legislators’] are members of Zilla Parishads and whether they have a right to vote at the election of Adhyaksha and Upadhyaksha.
16. The contention of the appellants’ Counsel was that the Legislators are not members of Zilla Parishads, as they are not elected by the voters of the Zilla Parishad; that they are given only certain rights ‘to take part in the proceedings of and to vote at the meetings of the Zilla Parishad, that an election process to elect Adhyaksha/Upadhyaksha, is not such a proceeding of the Zilla Parishad as is referred in Section 139(3)(a).
17. The “election” according to them, could not be at a meeting of the Zilla Parishad, but could only be by a special assemblage or gathering, wherein no open voting could take place, Their contention is that the ‘proceedings’ referred in Section 139(3)(a), is a proceeding in which those permitted to take part, should be in a position to take part in its entirety, and in case, any part of proceeding as outside the scope of their participation then, such a proceeding does not fall within Section 139(3)(a). This contention is urged in the context of Section 139(3)(a) and the Rules. These provisions exclude the legislators from being candidates in the election of Adhyaksha and Upadhyaksha. They cannot propose or second the candidates. It was urged by the Counsel that, to vote for, to propose or to second a candidate, as well as to be a candidate, in an election, are essential ingredients of participation in an election process. If any one ingredient is excluded and is not available to anyone, then he is not participating at all in the ‘proceedings’. If so, it was argued, that, Section 139(3)(a) was not at all applicable to such a proceedings. It was emphasised that opportunity to (and right to) take part in every event of an election, was essential to render ‘participation’ in the proceedings. Confining the participation to one or two aspects of an election, is no participation in the ‘proceedings’ of an election. Therefore, when the legislators are not permitted to hold the office of Adhyaksha/Upadhyaksha as per Section 139(3)(b), an important stage of participation in the election process is denied to them.
18. Similarly, when the Rules do not permit them to propose or second a candidate for those offiices, again participation in another important stage of election process is denied to them. The cumulative effect of these denials result in non-participation in the ‘proceedings.’ of an election. Assuming the election for these offices can take place at a meeting, it was urged that as the legislators are not entitled to take part in the proceedings in its entirely, Section 139(5)(a) cannot apply at all; if so, question of their having any right to vote as stated therein will not arise.
19. The learned Advocate General controverted these contentions by urging that the word ‘member’ is not defined in the Act and its meaning depends upon the context in which it is used. In the context of the constitution of a Zilla Parishad, legislators fall within the concept of ‘members’ and therefore Zilla Parishad comprises of legislators as well. As per Section 139(4), Zilla Parishad is deemed duly constituted where two-thirds of the total number of its members required to be elected, are elected. As per Section 165(1), every Zilla Parishad, shall, as soon as may be, choose two of the elected members as Adhyaksha/Upadhyaksha etc., in accordance with such Rules as may be prescribed. According to the learned Advocate General the Rules may provide for the election of Adhyaksha/Upadhyaksha by secret ballot or by open motion and the assemblage of the members of Zilla Parishad is nothing but a meeting of Zilla Parishad and therefore by virtue of Section 139(3)(a) the Legislators are entitled to vote at such an election. The word ‘proceeding’ according to him cannot be understood in a narrow sense; similarly, the meaning of the word ‘meeting’ is not to be understood in a narrow sense. He argued that the rights of the legislators and the extent of their rights as members of the Zilla Parishad are to be gathered not only from Section 139(3)(a) and (b), but also from other provisions and the scheme of the Act, It was argued that, admittedly, the legislators are entitled to participate and vote at every meeting of the Zilla Parishad as per Section 139(3)(a). They have the right to interpellate the Adhyaksha on matters connected with the administration of the Zilla Parishad and they may move resolutions, as is clear from Section 171. They can participate in every aspect of the functioning of Zilla Parishad just like an elected member as is clear from these provisions. If legislators form the balancing group of members, who can curb the activity of Zilla Parishad or get any resolution passed, or prevent any resolution being passed, they can practically stall the proceedings of Zilla Parishad. It does not matter whether the Adhyaksha was elected with their votes or not. If they are held to have no right to vote in the election of Adhyaksha/Upadhyaksha, still such legislators can stultify the functioning of those office holders by virtue of their admitted right to participate in the proceedings of Zilla Parishad. In such a situation, when the law provides that they are entitled to all other rights, there is no reason to think that the law did not envisage in them a right to vote at the election of Adhyaksha/Upadhyaksha. According to the learned Advocate General such a right, unless specifically taken away or taken away by necessary implication, should be read as existing as part of their other rights. He further pointed out the language of Section 139(3)(b) which specifically takes away the right of MLAs and MLCs to hold the office of Adhyaksha/Upadhyaksha. If they do not have a right to vote at such an election, legislature would have stated specifically so in Section 139(3)(b) itself. He also compared the language of Section 139(2)(b) which restricts the scope of participation by ‘Associate Members’ of Zilla Parishad and pointed out that, wherever, rights of any kind of member is restricted, the Act did so specifically. Therefore, he argued that there is no scope at all for any supposed intendment in the Act denying the right, to vote, at an election of Adhyaksha/Upadhyaksha, to the legislators.
20. As per Section 138, Zilla Parishad is a body corporate, is an admitted fact. It is deemed to have been duly constituted on the election of atleast two-thirds of the total number of members required to be elected. Section 139 bears the heading ‘Composition of Zilla Parishad’. Thereafter its four sub-sections are enacted. Sub-section (1) refers to elected members. Sub-section (2) refers to Associate members, who are entitled to take part in the proceedings of Zilla Parishad, but shall not have the right to vote. Subsection (3) refers to the legislators and Sub-section (4) deems as to when Zilla Parishad is constituted.
21. Heading prefixed to a Section can be referred to in construing the said provision is an accepted principle.. Heading of a Section cannot be used to give an interpretation to the words used in the Section only if the words are clear and unambiguous.
In Bhimka -v.- Charan Singh it was observed, by quoting Maxwell, that,–
“The heading “prefixed to sections or sets of sections in some modern statutes are regarded as preamble to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.”
22. Here, the heading of the Section adds to the clarity to the provisions of Section 139, in case there is any ambiguity in them. It is clear therefrom that Zilla Parishad is composed of ‘elected members’, ‘associated members’ and ‘legislative-members’. Though as per Section 139(4), Zilla Parishad is deemed to have been constituted only when two-thirds of the total number of elected members, get elected, status of other class of members, in the composition of Zilla Parishad is clearly indicated by the heading of Section 138. Section 139(4) gives life to this body corporate, but does not limit the organs of the said body corporate.
23. On its being constituted, the Zilla Parishad “as soon as may be”, choose two of the elected members as Adhyaksha/Upadhyaksha at an election held in accordance with such Rules as may be prescribed (vide Section 165). Section 165(1) confines the eligibility to be chosen as Adhyaksha/Upadhyaksha, to the elected members. But it is silent, in a way, as to who are the members eligible to vote at such an election. But a close scrutiny of the said provision shows, that, actually there is no such silence; a careful reading of Section 165(1) reveals that the two elected members are to be chosen as Adhyaksha/Upadhyaksha by the ‘Zilla Parishad’. Thus the Section itself indicates as to who are to be the electors. The electors are those who compose the Zilla Parishad. It is that body corporate called Zilla Parishad, that has to choose the Adhyaksha/Upadhyaksha. Section 165(1) by referring to the Zilla Parishad, necessarily brings in all those who compose, to become Zilla Parishad (subject to other provisions, restricting the rights, if any).
24. Whoever is statutorily its members by virtue of Section 139, will comprise in the Zilla Parishad. In other words, elected members, associate members and legislators automatically constitute themselves as the Zilla Parishad. All of them normally will be eligible to participate in choosing the Adhyaksha/Upadhyaksha out of the elected members. But by virtue of Section 139(2)(b) associate members are not entitled to vote, at such a proceeding. Hence they are to be excluded from the composition of Zilla Parishad for the purpose of voting to choose the Adhyaksha/Upadhyaksha. Such ineligibility is not found in the case of legislators and therefore they will be entitled to exercise voting rights at such an election.
25. It was argued by the appellants that election of Adhyaksha/Upadhyaksha could not be at the first meeting of Zilla Parishad, provided by Section 170(2)(a) of the Act. This argument is based on the hypothesis that no election could take place at a ‘meeting’ at all.
26. For the office-bearers of a body corporate, election may be held at a meeting, is clear from the provisions of the Companies Act and the practice prevalent in various societies registered under the Societies Registration Act. Such a practice is also followed as stated in several statutes governing local bodies. To illustrate, as per Section 10 of the Karnataka Municipal Corporation Act, 1976, ‘Mayor and Deputy Mayor are to be elected at the first meeting of the Corporation’. Rules framed under Section 42 (3) of the Karnataka Municipalities Act, 1964 relates to the election of President or the Vice-President and this envisages a similar meeting; similar provision is found in Section 29A(4) of the Karnataka Co-operative Societies Act. Earlier the Karnataka Village Panchayats and Local Boards Act, 1959 provided for the election of the Chairman and Vice-Chairman of a Panchayat at a ‘meeting’ as per Section 30 thereof. Same Act provided for the election of the President/ Vice-President of a Taluk Board under Section 43(2) ‘at a meeting’. In the present Act, Section 43 provides for the ‘meeting’ of a Mandal Panchayat to elect its Pradhans/Upapradhans. Having regard to these legislative practices, it is not possible to accept the contention of the appellants, that, an election cannot take place at a meeting’.
27. Whether an election of the Chief Executive Officer of a body corporate should be by a secret ballot or whether it can be by open voting, is a matter for the statute in question, to provide. It is an admitted proposition that, right to vote in an election, as also, a right to hold an elected office, are statutory rights. Mode of election can be provided by the statute in its provisions, or may leave it to the Rule making authority to prescribe.
28. Learned Advocate General stated that, in view of the Karnataka Local Authorities (Prohibition of Defection) Ordinance, 1986, the elections to these offices are held on partylines and those who elect their Adhyaksha/Upadhyaksha cannot ignore their respective party mandate. Therefore, it was essential to have the election open. He urged that any mode providing for secret ballot in such matters will defeat the effective implementation of the said Anti-Defection law. But, we were not referred to the particular provisions of any such anti-defection law and therefore, a definite opinion on the effect of this anti-defection law cannot be expressed and, in fact, it is unnecessary to do so.
29. If major policy-questions of Zilla Parishad can be decided by an open voting system, there is no reason as to why the elections of its Adhyaksha/Upadhyaksha should be by secret ballot system. It was admitted by Sri A.K. Subbaiah, that Speakers of Legislative Assemblies and of Parliament are elected by open voting system and secret ballot system was not followed. Those elections are by the procedure of moving the motion as is found in the Rules to elect the Adhyaksha/Upadhyaksha.
30. The members of Zilla Parishad are the elected representatives of the people; they are expected to be fearless and disciplined. They have to participate in many important decision taking proceedings of Zilla Parishad. They will be acting with full responsibilities, is the hope of the Statute. There is a vast difference between the voters at a general election, wherein the mass of voters comprise of both literate and illiterate persons. Existence of a large number of pusillanimous voters, whether literate or illiterate, poor or rich, will have to be recognised in the case of a general election, either to local bodies, Assemblies or Loksabha. Secrecy of voting will have to be maintained in such cases, to have a free and fair election. When number of voters are large, running to several thousands, it is impracticable to have the votes taken at a meeting of the voters. Ballot system is inevitable in such a situation. But when the voters (like the elected members of a Zilla Parishad) constitute a class of persons who themselves represent the people in general and who are leaders of their men, and who pass through the rigours of a general election, it cannot be said that they require the secrecy of voting to protect themselves Voting by viva-voce is one of the recognised and established mode of election which can be resorted when the voters are a few in number. Whenever election is to be by ballot, the Act specifically states so, as in Sections 7(2) and 156(2). In these circumstances, the contention urged by the appellants that any election, to be effective and to satisfy the basic requirement of an ‘election’ ought to be by secret ballot, cannot be accepted.
31. It is an admitted fact that the legislators referred in Section 139(3)(a) are entitled to vote in all the meetings of the Zilla Parishad. No distinction is made between a special meeting and an ordinary meeting. If so, it follows that they are entitled to vote at the meeting specially convened for the purpose of expressing want of confidence in Adhyaksha/ Upadhyaksha as provided in Section 167(3). In other words, when the right to vote at a meeting, to oust an Adhyaksha/ Upadhyaksha flows from Section 167(3), it is difficult to say that such a right does not exist to vote to elect those office holders.
32. A reference to the several provisions of the Act would show that the meaning attributable to the word ‘members’ of a Zilla Parishad depends upon the context in which it is used and therefore nothing turns out of the argument advanced by both sides, relying on the circumstance that there is no definition of the word ‘members’ in the Act.
33. Arguments were also addressed, that the ‘first meeting’ of Zilla Parishad referred in Section 170(2)(b) cannot be the meeting held for the purpose of electing the Adhyaksha/Upadhyaksha. A combined reading of Section 165 and Section 170(2)(b), supports the contention that such a meeting is the first meeting. Section 165(1) says ‘as soon as maybe’ Zilla Parishad shall choose Adhyaksha/Upadhyaksha, For the purpose of the choosing, the Zilla Parishad has to meet, as provided in the Rules. Then necessarily it will be the first meeting of Zilla Parishad. The Commissioner has no power to preside at the subsequent meetings of Zilla Parishad. Section 170(2)(a) states that Commissioner shall preside at the first meeting. This is inevitable because until Adhyaksha/Upadhyaksha is chosen, there is none to ‘preside. Commissioner represents the State Government which has the residuary power under the Act, including a power to dissolve a Zilla Parishad and to appoint an Administrator. A harmonious construction of the provisions of Sections 165 and 170, necessarily leads to the inference that the meeting of Zilla Parishad to elect Adhyaksha/Upadhyaksha is its first meeting. Any other construction makes the provisions of Section 170(2)(a) meaningless.
34. Mr. Subbaiah argued that, even though Zilla Parishad is constituted on the election of its two thirds total number of members, Zilla Parishad cannot function until Adhyaksha/Upadhyaksha is elected. Therefore, he says the proceedings of a non-functioning Zilla Parishad is not the proceedings of Zilla Parishad coining within Section 139(3)(a). He laid emphasis on the powers and duties of the Adhyaksha as the Executive head of Zilla Parishad under Section 168, and his duty to preside at the meetings of Zilla Parishad under Section 170. He also pointed out other provisions vesting certain responsibilities in the Adhyaksha. Zilla Parishad speaks and acts through its Adhyaksha. Therefore, Mr Subbaiah contends that Zilla Parishad is notionally constituted under Section 139(4), but, at that stage it’ is nonfunctional. It becomes functional only on electing the Adhyaksha.
35. A very interesting argument indeed, though, it cannot be accepted, in view of Section 165(1). The Act by enacting Section 165(1) makes the Zilla Parishad functional by directing the Zilla Parishad to choose its Adhyaksha and Upadhyaksha. On it being constituted, Zilla Parishad becomes a body corporate with all its functional capacities. The first act of such a newly born Zilla Parishad is to choose its Adhyaksha and Upadhyaksha, so that, the Zilla Parishad can immediately thereafter move on to fulfil its statutory obligations and functions.
36. The above conclusions also derive strength from the decision in Chancha Reddy -v.- Muniraju & Ors. 1961 Mys, L. J. 210. It is a decision of a Division Bench. Question involved was identical, which arose under the provisions of Mysore Village Panchayats & Local Boards Act, 1959 (referred as ‘the earlier Act’). The earlier Act now stands repealed by the Act. Sections 113, 117 and 96(2) of the earlier Act are similar to Sections 165, 170 and 139(3)(a) of the Act.
37. In the above said decision, it was held,–
“(i) The plain meaning of the expression ‘proceedings of a meeting’ is one which comprises such well known incidents as the making of a proposition for consideration, the seconding thereof for it to deserve consideration, the discussions of the two sides of the questions by the members present and voting thereon by members, resulting, ultimately in a decision of the meeting. Viewed in that light, if an election is one of the propositions made at the meeting and proposals seconded, the process of voting thereon culminating in the declaration of results in the light of voting, can rightly be described as ‘proceedings of the meeting’.
(ii) There cannot be any doubt the legislators will be entitled to vote at the election of the President and Vice-President, held at the meeting.
(iii) It is well known legislative practice with reference to all legislature dealing with local boards to make provisions for election of office bearers at the first meeting.
(Underlining is supplied here)
38. The Act is a successor to the above referred earlier Act. Broad purpose of the two Acts are same, though jurisdiction of Zilla Parishad is wider. The above referred decision has stood unchallenged all these years. The interpretation of similar words was involved in the earlier decision. This must have surely been taken note of by the legislature while enacting the Act. Counsel for the appellants have not explained as to how the interpretation given earlier would result in public inconvenience or mischief and how it was plainly erroneous, calling for reconsideration. It is apposite here to refer to the passage from the House of Lords in Banas -v.- Aberdeen Steamer Trawling & Fishing Co. Ltd. 1933 AC 402 quoted by the Supreme Court in Banarasi Divi -v.-ITC as follows :-
“It has long been a well established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it.”
In view of these principles, the ratio of the earlier decision cannot be ignored and if so, the contentions of the appellants are liable to be rejected.
Re. Mala fide exercise of power in framing the Rules
39. The elections to Zilla Parishads were held on 2-1-1987 and results were announced on 3.1.1987. The contention of the appellants is, that, in some of the Zilla Parishads, the Janatha Party could not secure majority. But the Janatha Party had majority of members amongst the ‘legislators’. Therefore, it was argued that, by conferring the right to vote at the elections of Adhyaksha and Upadhyaksha on the legislators, the ruling party has schemed to secure its candidates elected to those offices of Zilla Parishads. The purpose was, it was contended, to set at naught the majority enjoyed by the Congress-I in some of the Zilla Parishads by the strength added to Janatha party with the votes of legislators. It was argued that it is with a view to achieve this alleged sinister purpose, the impugned Rules were made, in the place of Karnataka Zilla Parishads (Election of Adhyaksha & Upadhyaksha) Rules, 1985 – hereinafter referred as the “earlier Rules”. The Counsel for the appellants stated that after the enactment of the Act and before the elections were held to Zilla Parishads the earlier Rules were framed. There was no reason to alter or repeal them by the impugned Rules, after the election results were announced.
40. It is unnecessary to go into the question, in the manner raised by the appellants. The framing of Rules is an act of subordinate legislation and therefore, whether such an act can be challenged as a mala fide exercise of statutory power, was the question of law argued. But this does not call for an answer, in view of the factual background here. The Act was already there. As stated above, the Act does not exclude the ‘legislators’ from participating in the election proceedings and vote at such an election held, to elect Adhyaksha and Upadhyaksha. The language of the various provisions of the Act envisage the participation of legislators in such elections and vests in them the right to vote This was in no way curtailed by the earlier Rules also. Whereas the word ‘members’ was not defined in the earlier Rules, same is now defined in the impugned Rules to include ‘legislators’. If the earlier Rules did not define the word, the word should bear the meaning as understood in the Act. The definition given by the impugned Rules, as already stated, does not go beyond the meaning of the word attributed to it by the Act. Therefore, there has been no change made, in substance, by the impugned Rules. Situation was the same under the earlier Rules. The scheme of the earlier Rules has not in any way excluded the participation of legislators at the election of Adhyaksha and Upadhyaksha In fact. Rule 3(3) of the earlier Rules makes it clear that” such members were not entitled to act as proposers or seconders or as persons to be nominated as candidates to fill the offices of Adhayaksha/ Upadhayaksha. But, the right to vote, to elect those office-bearers was not excluded. The mode of election under the earlier Rules was by ballot, which is now altered to an open election under the impugned Rules ; election of Adhyaksha/ Upadhyaksha, is by the process of voting for or against a motion. Voting on the motion is by viva voce. Except this difference, no substantial difference is found between the rights of the legislators under the earlier Rules and the one stated in the impugned Rules. Therefore, it cannot be held that the repeal of the earlier Rules and their replacement by the impugned Rules, is motivated to gain any political end. The very basis for the contention does not exist.
The appeals are, therefore, rejected, without any order as to costs.