ORDER
Syed Saadatulla Hussaini, J.
Heard Mr. S. Ramachandra Rao, the learned Senior Counsel for the petitioners and the learned Advocate General for the Government.
1. Since the arguments in the W.P.M.Ps. and the Writ petition are one and the same, the main writ petition is being disposed of.
2. The petitioners seek an appropriate writ, order or direction declaring the Rules issued by the Government in G.O.Ms. No. 137, Panchayat Raj and Rural Development (Mandal-I) Department, dated 27-3-1997 and the amended G.O.Ms. No. 171, Panchayat Raj and Rural Development (Mandal-I) Department dated 19-4-1997 as arbitrary, illegal and violative of principles of natural justice and fundamental rights guaranteed to the petitioners under Articles 14, 16, 40 and 243F of Constitution of India and also violative of provisions of A.P. Panchayat Raj Act, 1994.
3. It is submitted by the petitioners in the affidavit filed in support of the writ petition that the A.P. Panchayat Raj Act, 1994 (Act No. 13 of 1994) was in force in the whole State of Andhra Pradesh from 13th, May 1994. Elections to the Mandal Parishad Territorial Constituencies were conducted in March, 1995 on the basis of a party system. The Mandal is divided into constituencies i.e Mandal Parishad Territorial Constituencies (M.P.T.C.) and the election of the President and Vice-President was conducted on the basis of the indirect election, i.e., the elected M.P.T.C. Members will elect the President and Vice-President from among themselves.
4. It is stated that the petitioners 1, 3 and 4 herein were elected as Mandal Parishad Territorial Constituency (M.P.T.C.) Members from Yadagirigutta No. 1, Kacharam and Datarapalli M.P.T.Cs. in Yadagirigutta Mandal of Nalgonda District on the Telugu Desam Party symbol of 'Cycle' respectively. The 2nd petitioner herein has been elected as Member from Vartoor M.P.T.C. in Yadagirigutta Mandal of Nalgonda District on the C.P.I, symbol of 'Sickle' during the M.P.T.C. elections held in March, 1995 and the petitioners have been declared elected.
5. It is further stated that as per Section 245 of the Act, a no-confidence motion has to be moved after being signed by one half of the total number of members of the Gram Panchayat or Mandal Parishad as the case may be. It is specified that no notice of motion under this section shall be made within 2 years from the date of assumption of office by the person against whom the motion is sought to be moved. It is further specified that no notice of motion shall be made against the same person more than once during his term of office. If the motion is passed by majority as required by Sub-section (2) of Section 245, the Government is the Authority to remove him from his office by issuing a notification. In Section 245 of the Act, it is specified that further action after giving the notice of no-confidence shall be taken in accordance with the procedure prescribed. Accordingly, the Government has prescribed the Rules relating to motion of no-confidence through G.O.Ms. No. 137, Panchayat Raj and Rural Development (Mandal-I) Department, dated 27-3-1997. Rule 8 of the Rules specifies about the convening of meeting and the Authorised Officer who should convene (specified in Rule 2) and the Authorised Officer shall read the motion for consideration of the meeting and shall put to the vote without any debate. The voting shall be by way of showing hands. The proviso to Rule 8 says that 'Provided that a member voting under Sub-section (1) of Section 153 in disobedience of the party whip shall cease to hold the office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.' Section 153 of the Act speaks about the election and term of office of President and Vice-President and the proviso of the said section speaks about the party whip and the cessation of office of a member who disobeys the said whip issued by the party. The above proviso has no application as far as no confidence motion is concerned. It is applicable only in the case of election of the President and Vice-President. Accordingly, after noticing the same, it seems that the Government had issued amendment to the above said Rule 8 of the Rules through G.O.Ms. No. 171, dated 19-4-1997. By the amendment, the proviso to Rule 8 has been substituted by the proviso made therein.
6. It is further stated that the impugned G.O.Ms. No. 171, dated 19-4-1997 is contrary to the provisions of A.P. Panchayat Raj Act, 1994 as it is beyond the scope and ambit of provisions of the Act. The power to decide disqualification of a member shall not be conferred upon the officials by way of an Executive order/rules, as it amounts to excessive delegation of powers. Article 243-F of the Constitution specifies the disqualification of membership. The amended Rule 8 is contrary to Article 243-F of the Constitution which specifies disqualification of membership. The Authority specified under Rule (2) of the Rules has no power to decide the disqualification of member's membership. The power conferred upon the Authority under the Rules to decide the disqualification, without following the principles of natural justice, like notice or hearing, violates Article 14 of the Constitution. The Rules framed by the Government are contrary to the intent of the Act and Article 40 of the Constitution, as they are opposed to the self-governing local bodies.
7. It is further stated that as per Tenth Schedule of the Constitution, 1/3rd of the total number of members of any political party shall attract Anti-Defection Law. The same is not provided in the present impugned Rules. If the Authorities want to apply the Anti-Defection Law, that shall be only in toto and not partly to deny the protection given under the Tenth schedule of the Constitution and even there is a mechanism to decide about the disqualification of a member elected by the people; but, in the present Rules, no such mechanism is contemplated. As such, automatic cessation is not legal.
8. The Government in its counter has submitted that 73rd Amendment of the Constitution was introduced by the Constitution (73rd Amendment) Act, 1992 which came into force on 20th April, 1992. The 73rd amendment of the Constitution has introduced Part IX relating to Panchayats in the Constitution of India. The Constitution (73rd Amendment) Act, 1992 has been passed by the Parliament with a view mainly to strengthen and revitalise the Panchayat Raj Bodies so that they can sub-serve the needs of the teeming millions that live in Rural areas. The A.P. State Legislature passed A.P. Panchayat Act 1994 (Act No. 13 of 1994) which came into force on 30th May, 1994.
9. It is stated that Article 243-F of the Constitution of India provides for disqualification of members who defect from parties on whose ticket they get elected. In accordance with Article 243-F, a person shall be disqualified for being chosen as, and for being, a member of Panchayat,
(a) if he is so disqualified by or under any law for the time being in force for the purposes of election to the Legislature of the State concerned, and
(b) If he is so disqualified by or under any law made by the Legislature of the State.
10. It is further stated that Section 153 (1) of A.P. Panchayat Raj Act, 1994 second proviso stipulates that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
11. It is further stated that 10th Schedule of the Constitution of India was introduced by Constitution (52nd Amendment) Act, 1985 in the Constitution regarding the provisions as to disqualification on ground of defection. The 10th Schedule of the Constitution prohibits voluntarily giving up his Membership of such political party or if he votes or abstains from voting contrary to any direction issued by the political party to which ho belongs or any person or authority authorised by it in this behalf, without obtaining in either case the prior permission of such political party, person or authority. The object of 10th Schedule and second proviso of Section 153 of A.P. Panchayat Raj Act, 1994 and second proviso of Section 181 of the Act, is to prohibit defection from the political party from which a member is elected. The people are giving their mandate in the elections on the basis of a political party. Therefore, to respect the mandate of the people given in favour of the political party , during the elections, the defection from the original political party is prohibited. With the same objective, the Government of A.P. issued G.O.Ms. No. 137, Panchayat Raj and Rural Development (Mandal-I) Department, dated 27-3-1997 and consequential amendment in G.O.Ms. No. 171, Panchayat Raj and Rural Development (Mandal-I) Department dated 19-4-1997 prohibiting defection from the original political party. The Rules are framed by virtue of Section 245 of the Act and also Section 268 of the Act. Thus, the Rules framed under the G.Os. come within the purview of Law made by the Legislature of the State. The Legislature of the State Under Section 245 of the Act clearly stated that the procedure of no-confidence motion moved agains Upa-Sarpanch/President/Vice-President of a Mandal Parishad or Chairman/Vice-Chairman of a Zilla Parishad, shall be taken in accordance with the procedure prescribed. The State Legislature delegated the power of making rules Under Section 245 to the rule making authority. Thus the rules are framed in exercise of the powers conferred by Sub-section s (1) and (2) of Section 245 of the Act read with Section 268 of the Act, 1994. The rules issued in G.O.Ms. No. 137 as amended in G.O.Ms. No. 171, will be laid before the Legislative Assembly of the State as required Under Section 268 of the Act. Thus, the Rules issued in G.O.Ms. No. 137 as amended in G.O.Ms. No. 171, are not violative of Articles 14, 40 and 243-F of the Constitution of India. Article 16 of the Constitution has no relevance to the instant case, and there is no violation of fundamental rights or principles of natural justice as alleged by the petitioners.
12. It is also stated that Article 243-F(2) of the Constitution stipulates that if any question arises as to whether a member of a Panchayat has become subject of any of the disqualifications mentioned in Clause (1) the question shall be referred for the decision of such authority and in such manner as the Legislature of the State may by law provide. Therefore, the power to decide disqualifications of a member for violating the whip of a political party or defecting in violation of the political mandate given by the people to the member of the panchayat, is given to the Revenue Divisional Officer who conducted the proceedings of the no-confidence motion in the manner prescribed by the Rules in accordance with Section 245 of the Act. Therefore, it does not amount to excessive delegation of powers.
13. It is further stated that the above said Rules are not executive instructions, but they are the Rules framed by virtue of delegated legislation in accordance with Sections 245 and 268 of the Act, 1994 and they are in confirmity with Article 243-F of the Constitution.
14. It is also stated that the authority specified under Rule 2 of the Rules is vested with the power to decide the disqualification of a member and this power conferred upon the authority is in accordance with Article 243-F of the Constitution and Section 245 of the Act and the Rules framed thereunder.
15. It is further stated that the Mandal Parishad Territorial Constituency or Zilla Parishad Territorial Constituency member of a Panchayat, is governed by the provisions of the A.P. Panchayat Raj Act and the Rules issued thereunder. The right to be elected as a Mandal Parishad Territorial Constituency or Zilla Parishad Territorial Constituency Member of a Panchayat and removal by no-confidence motion are governed by Act or Statute and it is not a fundamental right or right in common law. Voting in disobedience of the whip will be done deliberately by a member knowing fully the consequences of ceasing to be a member or the office as provided for under the provisions of the Constitution and the provisions of A.P. Panchayat Raj Act and the Rules issued thereunder. It may not be necessary to issue notice under the principles of natural justice as contended by the petitioners. This does not contemplate any violation of the Article 14 of the Constitution. Article 40 of the Constitution of India in Chapter IV with regard to the directive principles of State policy, provides that the State shall take steps to organise village bodies with such powers and authority as may be necessary to enable them to function as units of self-Government. The Rules are issued in accordance with Tenth Schedule of Constitution with the laudable object of preventing defection from the political party from which they were elected because the disrespect to the political mandate given by the people by way of defection is in violation of the will of the people expressed in the decisions. It is further stated that these rules are introduced with the object of preventing the bad consequences flowing from the defection thereby affecting the principle of democracy at the gross root level.
16. It is further stated that the 73rd Amendment of the Constitution is a complete Code in itself. It is not necessary to import all or some provisions of the Tenth Schedule being made applicable to the differing situation as applicable under this Act.
17. Lastly, it is stated that notice has been served on the Revenue Divisional Officer, Bhongir for moving no-confidence motion against the President, Mandal Parishad of Yadagirigutta. The meeting to consider the aforesaid no-confidence motion has been fixed on 19-7-1997.
18. In the foregoing facts, there are no merits in the writ petition and it deserves to be dismissed.
19. Mr. S. Ramachandra Rao, the learned Senior Counsel appearing for the petitioners submitted that the petitioners who are the members of the Mandal Parishad Territorial Constituency and who have been the elected members of the Mandal Parishad on Telugu Desam Party symbol of 'cycle' and on C.P.I, symbol of 'sickle' during M.P.T.C. Elections in March, 1995, challenge the validity of G.O.Ms. No. 137, Panchayat Raj and Rural Development (Mandal-I), dated 27-3-1997 and G.O.Ms. No. 171, Panchayat Raj and Rural Development (Mandal-I) Department, dated 19-4-1997 on the ground that they are issued contrary to Articles 14., 16, 40 and 243-F of Constitution of India and also violative of the provisions of A.P. Panchayat Raj Act and against the principles of natural justice.
20. He submitted that 73rd Amendment of the Constitution has introduced Part IX of the Constitution relating to the Panchayats in the Constitution of India. This amendment of the Constitution was effected keeping in view the Article 40 of the Constitution with regard to organization of village panchayats and to endow them with such powers and authority to enable them to function as units of self-Government. He referred to Article 243-C with regard to composition of panchayats and Article 243-C where the Chair person of the Panchayat and other members of the Panchayat are elected from territorial constituencies in the Panchayat area. He also relied on Article 243-F (a) and (b) which relates to disqualifying a member of a panchayat. Relying on Sub-clause (sic. Clause) (2) of Article 243-F, he submitted that when a question arises as to whether a member of panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such a manner as the Legislature of a State may, by law, provide.
21. He refers to Article 102(2) and 191 (2) of the Constitution and X Schedule of the Constitution which deal with the disqualification of membership of either House of Parliament and also either members of Legislative Assembly or Legislative Council of the State. He stated that there cannot be a disqualification of the member mechanically.
22. He has submitted that the State Government has the legislative competence for framing of laws in so far with regard to the Panchayats by virtue of Entry 5 in the State List II of the VII Schedule to the Constitution of India read with Article 40. Later, he refers to Section 16 which deals with the elections in certain cases; 17 which deals with the qualification of candidates; 18 which deals with the disqualification of certain office holders; 19 which deals with the disqualification of candidates; 20 which deals with the disqualification of members and 22 which deals with the authority to decide questions of disqualifications of members-Where an allegation is made that any person who is elected as a member of a Gram Panchayat is not qualified or has become disqualified Under Section 17, 18, 19 or 20 by any voter or authority to the Executive Authority in writing and the Executive Authority has given intimation of such allegation to the member through the District Panchayat Officer and such member disputes the correctness of the allegation so made or where any member himself entertains any doubt whether or not he has become disqualified under any of those sections, such member or any other member may, and the Executive Authority, at the direction of the Gram Panchayat or the Commissioner shall, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, apply to the District Munsif having jurisdiction over the area in which the office of the Gram Panchayat is situated for decision.
23. He has also referred to Section 245 (1) and (2) which deal with the mode of passing no-confidence motion against Upa-Sarpanch, President or Chairman. He also submits that the election to the Mandal Parishad is held on non-party basis and there was free voting. There is no provision under the Act for conducting the elections on party basis.
24. He further submits that in Section 245 of the Act, it was specified that further action after giving notice of no-confidence motion shall be taken in accordance with the procedure prescribed. Accordingly, the Government has prescribed the rules relating to motion of no-confidence through G.O.Ms. No. 37, Panchayat Raj and Rural Development (Mandal-I) Department, dated 27-3-1997. Rule 8 of the Rules specifies about the convening of meeting and the Authorised Officer who should convene (specified in Rule 2) and the Authorised Officer shall read the motion for consideration of the meeting and shall put to the vote without any debate. The voting shall be by way of showing hands. The proviso to Rule 8 says that 'Provided that a member voting under Sub-section (1) of Section 153 in disobedience of the party whip shall cease to hold the office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
25. It is his contention that Section 153 of the Act speaks about the election and term of office of President and Vice-President of Mandal Parishad and the proviso of the said section speaks about the party whip and the cessation of office of a member who disobeys the said whip issued by the party. The above proviso has no application as far as no confidence motion is concerned. It is applicable only in the case of election of the President and Vice-President of Mandal Parishad. Later, the Government issued amendment substituting Rule 8 by amendment in G.O.Ms. No. 171, dated 19-4-1997 which reads that an elected member of a recognised political party shall cease to be a member if he votes in disobedience to the directions issued by the party-whip. To this, he submits that the State Government or the Rule making authority has no power to frame such a rule which is not in consistent with the provisions of the Act.
26. Relying on Article 243-F(1) which deals with disqualification of membership, he submits that if any question arises as to whether a member of the panchayat has become subject to any disqualification mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of the State may, by law, provide. If a person is disqualified for voting against the whip, the disqualification has to be referred to an authority and that authority can only decide on the facts, and therefore Rule 8 is opposed to the provisions of Article 243-F (1) and (2).
27. Lastly, he submits that what the Constitution or the Law prohibits, cannot be done by a Rule. With regard to the rule making power of the authority, he relies on a Bench decision of the Apex Court reported in Moti Ram v. N.E. Frontier Railiway, : (1964)IILLJ467SC wherein their Lordships were considering the Article 309 vis-a-vis Article 311(2) of the Constitution of India with regard to the rule making authority. In para-27, their Lordships have held thus:
'In this connection, it is necessary to emphasise that the rule-making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Article 311(2). Article 311(2) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Article 309 so as to make the said right either ineffective or illusory.'
28. The learned Advocate General appearing for the State Government reiterated the introduction of Chapter-IX of the Constitution by virtue of the 73rd Amendment of the Constitution, which came into force on 20th April, 1992 with a view mainly to strengthen and revitalise the Panchayat Raj Bodies so that they can subserve the needs of the teeming millions that live in Rural areas. The A.P. State Legislature passed A.P. Panchayat Raj Act, 1994 (Act No. 13 of 1994) which came into force on 30th May, 1994.
29. He submits that X Schedule has been framed in the Constitution which deals with the floor-crossing, disqualifications and defections of the members of Parliament and State Legislatures under Articles 102(2) and 191 of the Constitution of India respectively.
30. He further submits that Article 243-F of the Constitution of India provides for disqualification of members. In accordance with Article 243-F a person shall be disqualified for being chosen as, and for being, a member of a Panchayat,
(a) if he is so disqualified by or under any law for the time being in force for the purpose of election to the Legislature of the State concerned, and
(b) if he is so disqualified by or under any law made by the Legislature of the State.
31. He further submits that second proviso to Section 153 (1) of A.P. Panchayat Raj Act, 1994 stipulates that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
32. He also submits that the object of 10th Schedule and second proviso of Section 153 of A.P. Panchayat Raj Act, 1994 and second proviso of Section 181 of the Act, is to prohibit defection from the political party from which a member is elected. The people are giving their mandate in the elections on the basis of a political party. Therefore, to respect the mandate of the people given in favour of the political party, during the elections, the defection from the original political party is prohibited. With the same objective, the Government of A.P. issued G.O.Ms. No. 137, Panchayat Raj and Rural Development (Mandal-I) Department, dated 27-3-1997 and consequential amendment in G.O.Ms. No. 171, Panchayat Raj and Rural'Development (Mandal-I) Department, dated 19-4-1997 prohibiting defection from the original political party. The rules are framed by virtue of Section 245 of the Act and also Section 268 of the Act. Thus, the Rules framed under the G.Os. come within the purview of Law made by the Legislature of the State. The Legislature of the State Under Section 245 of the Act clearly stated that the procedure of no-confidence motion moved against Upa-Sarpanch/President/ Vice-President of a Mandal Parishad or Chairman/Vice-Chairman of a Zilla Parishad, shall be taken in accordance with the procedure prescribed. The State Legislature delegated the power of making rules Under Section 245 to the rule making authority. Thus, the rules are framed in exercise of the powers conferred by Sub-section s (1) and (2) of Section 245 of the Act read with Section 268 of the Act. The rules issued in G.O.Ms. No. 137 as amended in G.O.Ms. No. 171, will be laid before the Legislative Assembly of the State as required Under Section 268 of the Act. The said rules are not violative of Articles 14, 40 and 243-F of Constitution of India. There is no violation of fundamental rights or principles of natural justice as alleged by the petitioners.
33. He submits that Article-243-F of the Constitution stipulates that if any question arises as to whether a member of a Panchayat has become subject of any of the disqualifications mentioned in Clause (1) the question shall be referred for the decision of such authority and in such manner as the Legislature of the State, may, by law, provide. Therefore, the power to decide disqualifications of a member for violating the whip of a political mandate given by the people to the member of the panchayat, is given to the Revenue Divisional Officer who conducted the proceedings of the no-confidence motion in the manner prescribed by the Rules in accordance with Section 245 of the Act. Therefore, it does not amount to excessive delegation of powers.
34. It is also submitted that the authority prescribed under Rule (2) of the Rules is vested with the power to decide the disqualification of a member and this power conferred upon the authority is in accordance with Article 243-F of the Constitution and Section 245 of the Act and the Rules framed thereunder.
35. He further submitted that the Mandal Parishad Territorial Constituency or Zilla Parishad Territorial Constitutency member of a Panchayat, is governed by the provisions of the A.P. Panchayat Raj Act and the Rules issued thereunder The right to be elected as a Mandal Parishad Territorial Constituency or Zilla Parishad Territorial Constituency Member of a Panchayat and removal by no-confidence motion are governed by Act or Statute and it is not a fundamental right or right in common law. Voting in disobedience of the whip will be done deliberately by a member knowing fully the consequences of ceasing to be a member or the office as provided for under the provisions of the Constitution and the provisions of A.P. Panchayat Raj Act and the Rules issued thereunder. It may not be necessary to issue notice under the principles of natural justice as contended by the petitioners. Article 40 of the Constitution of India in Chapter IV with regard to the directive principles of State policy, provides that the State shall take steps to organise village bodies with such powers and authority as may be necessary to enable them to function as units of self-government. The Rules are issued in accordance with X Schedule of Constitution with the laudable object of preventing defection from the political party from which they were elected because the disrespect to the political mandate given by the people by way of defection is in violation of the will of the people expressed in the decisions. These rules are introduced with the object of preventing the bad consequences flowing from the defection thereby affecting the principle of democracy at the gross root level.
36. He further submitted that the 73rd Amendment of the Constitution is a complete Code in itself. It is not necessary to import all or some provisions of the X Schedule being made applicable to the differing situation as applicable under this Act.
37. On the above pleadings, the points that arise for consideration are:
(1) Whether the amendment effected to Rule 8 in G.O.Ms. No. 171, Panchayat Raj & Rural Development (Mandal-I) Department, dated 19-4-1997, violates Articles 16, 40 and X Schedule of the Constitution?
(2) Whether the amendment effected in G.O.Ms. No. 171 dated 19-4-1997 is constitutionally valid and within the powers of rule-making authority Under Section 245 read with Section 268 of the A.P. Panchayat Raj Act and (sic. or whether it) violates Articles 14 and 243-F of the Constitution?
38. It is pertinent to note as spelt out in counter-affidavit of the Government that 73rd Amendment Act 1992 has been passed by the Parliament with a view mainly to strengthen and revitalise the Panchayat Raj Bodies so that they can subserve the teeming millions who live in rural areas. The A.P. State Legislature has passed A.P. Panchayat Raj Act, 1994 (Act 13 of 1994-hereinafter referred to as 'Act') which came into force on 30th May, 1994. It is specifically stated at page 8 of the counter-affidavit of the State Government that the Rules issued in G.O.Ms. No. 137, dated 27-3-1997 as amended in G.O.Ms. No. 171, dated 19-4-1997 are in accordance with Article 243-F and 40 of the Constitution of India. Article 40 in Chapter-IV of the Constitution of India provides that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The object of issuing these rules in G.O.Ms. No. 137 and 171, is in accordance with the Constitutional policy as framed in Tenth Schedule of the Constitution and in Section 153 of the Act with the laudable object of preventing defection from the political party from which they were elected because the disrespect to the political mandate given by the people by way of defection is in violation of the will of the people expressed in the decisions and further it is stated that these rules are introduced with the object of preventing the bad consequences flowing from the defection thereby affecting the principle of democracy at the gross root level. But, in para-1 on page-9 of the counter-affidavit, an inconsistent stand has been expressed to the effect that 73rd Amendment of the Constitution is a complete Code in itself. It is not necessary to import all or some provisions of the Tenth Schedule in view of the said constitutional provisions being applicable to far differing situation. The elections to the Mandal Parishad have been held on the basis of political parties.
39. To appreciate the contentions advanced by both the Counsels, it is necessary to scrutinise the various provisions of Constitution of India and the A.P. Panchayat Raj Act, 1994, in so far they are relevant, which are extracted as under:
Article 40: ORGANISATION OF VILLAGE PANCHAYATS:- The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
Article 243-F:- GRAM SABHA: A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide.
Article 243-F: CONSTITUTION OF PANCHAYATS: (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in Clause (l),Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.
Article 243-C: COMPOSITION OF PANCHAYATS: (1) Subject to the provisions of this part, the Legislature of a State may, by law, make provisions with respect to the composition of panchayats:
Proviso: xxxxxxxxxxxxx Clause (2) & (3) xxxxxxxxxxxxxxxxxxxx. (4) &(5) xxxxxxxxxxxx.
Article 243-F: DISQUALIFICATIONS FOR MEMBERSHIP:
(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat
(a) if he is so disqualified by or under any law for the time being in force for the purpose of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
Tenth Schedule of the Constitution:
Paragraph-2: DISQUALIFICATION ON GROUND OF DEFECTION: (1) Subject to the provisions of paragraphs, 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House.
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within 15 days from the date of such voting or abstention.
Explanation:- For the purposes of this sub-paragraph, (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, (b) a nominated member of a House shall,
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party,
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be Article 188.
(2), (3) & (4) xxxxx xxxxxxxxxxxxxxxx.
Paragraphs: 6 DECISION ON QUESTIONS AS TO DISQUALIFICATION ON GROUND OF DEFECTION (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.
Paragraph: 8 RULES-(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for
(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong:
(b) the report which the leader of a Legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in Clause (b) of sub-paragraph (1) of paragraph (2) in respect of such member, the time within which and the authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to in sub-paragrpah (1) of paragraph-6 including the procedure for any inquiry which may be made for the purpose of deciding such question.
A.P. PANCHAYAT RAJ ACT, 1994
Section 22: Authority to decide questions of disqualifications of members:-
(1) Where an allegation is made that any person who is elected as a member of a Gram Panchayat is not qualified or has become disqualified Under Section 17, Section 18, Section 19 or Section 20 by any voter or authority to the Executive Authority in writing and the Executive Authority has given intimation of such allegation to the member through the District Panchayat Officer and such member disputes the correctness of the allegations so made, or where any member himself entertains any doubt whether or not he has become disqualified under any of those sections, such member or any other member may, and the Executive Authority, at the directions of the Gram Panchayat or the Commissioner shall, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, apply to the District Munsif having jurisdiction over the area in which the office of the Gram Panchayat is situated for decision.
(2) Pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified.
(3) Where a person ceases to be the Sarpanch or Upa-Sarpanch of a Gram Panchayat as a consequence of his ceasing to be a member of the Gram Panchayat under Clause (b) of Section 20 and is restored later to his membership of the Gram Panchayat under Sub-section (2) of Section 21, he shall, with effect from the date of such restoration, be deemed to have been restored also to the office of Sarpanch or Upa-Sarpanch, as the case may be.
Section 153: Election, Reservation & Term of Office of President and Vice-President: (1) For every Mandal Parishad there shall be one President and one Vice-President who shall be elected by and from among the elected members specified in Clause (i) of Sub-section (1) of Section 149 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. If at an election held for the purpose no President or Vice-President is elected, fresh election shall be held. The names of the President or Vice President so elected shall be published in the prescribed manner:
Proviso: x x x x x x x x x x x x x x x x x x x x xProvided further that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.Section 181: Election of Chairman & Vice-Chairman: (1) For every Zilla Parishad there shall be one Chairman and one Vice-Chairman who shall be elected from among the elected members specified in Clause (i) of Sub-section (3) of Section 177 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. If at an election held for the purpose no Chairman or Vice-Chairman is elected, fresh election shall be held. The names of the Chairman and the Vice-Chairman so elected shall be published in the prescribed manner:
Proviso: xxxxxxxxxxxxxxxxxxxxxxx Provided further that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.Section 245: Motion of no-confidence in Upa Sarpanch, President or Chairman:- (1) A motion expressing want of confidence in the Upa-Sarpanch or President or Vice-President or Chairman or Vice-Chairman may be made by giving a written notice of intention to move the motion in such form and to such authority as may be prescribed, signed by not less than one-half of the total number of members of the Gram Panchayat, Mandal Parishad or as the case may be, the Zilla Parishad and further action on such notice shall be taken in accordance with the procedure prescribed:
Section 268: Power of Government to make Rules for the purpose of this Act: (1) The Government, shall in addition to the rule making powers, conferred on them by any other provisions of this Act, have power to make rules generally to carry out all or any of the purposes of this Act.
40. After the amendment in G.O.Ms. No. 171, dated 19-4-1997, for the 'Proviso' to Rule 8 of the said rules, the following shall be substituted; namely :-
'Provided that an elected Member of a recognised political party shall cease to be a Member if he votes in disobedience to the directions issued by the party whip.'
Explanations:
(i) A recognised political party means a political party recognised by Election Commission of India, New Delhi;
(ii) Every recognised political party may appoint on behalf of that political party a whip, and such appointment shall be intimated by the State President or a person authorised by him, under his seal and such intimation shall be sent to the said officer so as to reach him before 10 a.m. on the day of the meeting convened to conduct the motion of no-confidence.
(iii) The said officer shall, on receipt of a written report sent by the party whip to the effect that a member belonging to his party has disobeyed the whip issued in connection with the meeting convened to express no-confidence within three days of the said meeting, declare in Form-VII that the said member has ceased to hold office and the order of the said officer shall be final.
41. It has to be seen that there is no such office of the Speaker or the Deputy Speaker of the House of the people or the Deputy Chairman of the Council of the State or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, in the Panchayat, Mandal Parishad or Zilla Parishad under the A.P. Panchayat Raj Act. If any question arises as to whether a member of a House has become subject to disqualification under this schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final. Paragraph-2 of Tenth Schedule of the Constitution deals with the disqualification on ground of defection; but, the scheme as envisaged for disqualification of a Member of either of the Houses of Parliament or State Legislature, has been set out clearly in paragraphs 2, 6 and 8 of the Tenth Schedule.
42. It is to be noted that Article 40 of the Constitution which appears in part IV of the Constitution deals with the directive principles of the State policy. It directs the States to take steps to organise the village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government.
43. Article 243-A deals with Gram-Sabha which may exercise such powers and perform such functions at the village level as the Legislature of the State may, by law, provide.
44. Article 243B speaks of Constitution of Panchayats in every State, at the village, intermediate and district levels in accordance with the provisions of this part.
45. Article 243-C deals with the provisions in this part where the Legislature of the State may, by law, make provisions with respect to the composition of panchayats.
46. Article 243-F deals with disqualification for membership of a panchayat. Article 243-F(2) deals with that if any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of the State may, by law, provide.
47. In case of dispute, Section 22 of the A.P. Panchayat Raj Act deals with the mode of disqualification of any member Under Section s 17, 18, 19 and 20.
48. Section 153 of the Act deals with the mode of election, reservation and term of office of President and Vice President, which speaks that for every Mandal Parishad there shall be one President and one Vice-President who shall be elected by and from among the elected members specified in clause (i) of Sub-section (1) of Section 149 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. The Proviso to Section 153 (1) provides that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy. This proviso was inserted by Act 5 of 1995.
49. Section 245 deals with motion of no-confidence in Upa-Sarpanch, President or Chairman. It states that a motion expressing want of confidence in the Upa-Sarpanch or President or Vice-President or Chairman or Vice-Chairman may be made by giving a written notice of intention to move the motion in such form and to such authority as may be prescribed, signed by not less than one half of the total number of members of the Gram Panchayat, Mandal Parishad or as the case may be the Zilla Parishad and further action on such notice shall be taken in accordance with the procedure prescribed.
50. Section 268 of the Act confers on the State Government the power to make rules under the provisions of this Act.
51. At the outset, it may be stated that the learned Senior Counsel for the petitioners has not placed any material to show as to how Article 16 of the Constitution is applicable to the case - for Article 16 deals with the equality of opportunity in matters of public employment and no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. As such, the contention of the Counsel for the petitioners, is not sustainable.
52. He has also not placed any material to show as to how the amendment to the Rule effected by G.O.Ms. No. 171, dated 19-4-1997 by substituting the proviso and adding explanations (i) to (iii), is in violation to the Article 40 of the Constitution. Article 40 of the Constitution deals with only with regard to organization of village panchayats. It states that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. The proviso and the explanations which have been incorporated to Rule 8 under the Amendment G.O. Under Section 245 of the Act deal with the procedure to be adopted when a no-confidence motion is moved against Upa-Sarpanch of Panchayat, President or Vice-President of Mandal Parishad and Chairman or Vice-Chairman of Zilla Parishad under the Act, and, it is not urged before me as to how it violates the functioning of panchayats as units of self-Government for a reading of Article 40 of the Constitution clearly states that for organization of village panchayats, the Government has to endow them with such powers and authority as may be necessary to enable themselves to function as units of self-Government. As such, the submission of the learned senior Counsel for the petitioners that the amendment affected to Rule under G.O.Ms. No. 171, dated 19-4-1997, is in violation of Article 40 of the Constitution, is not sustainable.
53. In so far with regard to Xth Schedule of the Constitution, it may be stated that the Xth Schedule has been framed with regard to disqualification of Member on the ground of defection, by the Parliament and State Legislatures under Articles 102(2) and 191(2) of the Constitution respectively.
54. Article 102(2) deals with the disqualifications for membership and it states that a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament. Article 102(2) states that a person shall be disqualified for being a Member of either House of Parliament if he is so disqualified under the Xth Schedule.
55. Similarly, Article 191(1) deals with disqualification for membership and it states that a person shall be disqualified for being chosen as, and for being, a Member of the Legislative Assembly or Legislative Council of a State. 191(2) deals that a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Xth Schedule.
56. It is seen that Article 102(2) and 191(2) deals with disqualification of an elected member, if he is disqualified under any provisions of Xth Schedule.
57. It is seen that Part-IX of the Constitution deals with panchayats and under Article 243B, it deals with constitution of panchayats. It states that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this part.
58. If we analyse this Article in its proper perspective it reflects that the mandate to the State Government is only to constitute the panchayats at all levels in accordance with the Articles framed under Part-IX of the Constitution only and the State Government need not travel beyond the scope of the Articles mentioned in Part-IX. If that being so, the procedure adopted by the State Government for disqualification of a member of the panchayat, Mandal Parishad or Zilla Parishad in its own wisdom, cannot be said to be violative of Xth Schedule of the Constitution; but it is altogether a different fact and whether the amended Rule 8 is valid, is discussed in Point No. 2.
58 (a). In the view I have taken above, I hold on Point No. 1 that the amendment effected to Rule 8 in G.O.Ms. No. 171 Panchayat Raj and Rural Development (Mandal-I) Department, dated 19-4-1997, does not violate Articles-16, 40 and Xth Schedule of the Constitution.
59. Point No: 2. The submission of the learned Senior Counsel for the petitioners that the amendment effected by G.O.Ms. No. 171, dated 19-4-1997, is in violation of Article 243-F (1) and (2) of the Constitution, is fallacious for Article 243-F (1) and (2) which appears in Part-IX of the Constitution, deals with the organization of panchayats i.e., constitution of Gram Sabha, constitution of panchayats, composition of panchayats, reservation of seats, duration of panchayats, disqualification for membership, authorities and responsibilities of Panchayats. Article 243-F deals with disqualifications for membership. It states that a person shall be disqualified for being chosen as, and for being, a member of Panchayat-
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned; Provided that no person shall be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years;
(b) if he is so disqualified by or under any law made by the Legislature of the State. Sub-clause (2) of Article 243-F provides that if any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1) the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
60. It is clear from the language used in Article 243-F that it deals with the disqualification of a person to be chosen as a member of a Panchayat and makes a provision in Sub-clause (2) for creating an authority to decide disqualification of the members in terms of Sub-clause s (a) and (b) of Article 243-F. In compliance with Article 243-F, the State Government has enacted independent Sections 17, 18, 19 and 22 of the A.P. Panchayat Raj Act. Section 17 deals with the qualification of the candidates; Section 18 deals with the disqualification of certain office holders; Section 19 deals with the disqualification of candidates, if a person is convicted by a Criminal Court and for other disabilities mentioned therein and Section 22 provides the Authority to decide the questions of disqualification of the members.
61. From the above provisions enacted by the State Legislature, it is clear that these have been enacted in consonance with Article 243-F of the Constitution and the amendment in G.O.Ms. No. 171, dated 19-4-1997 is not connected or related with Article 243-F of the Constitution- for the amendment is effected under the powers vested Under Section 245 read with Section 268 of the A.P. Panchayat Raj Act, which deal with the procedure to be followed and the disqualification of the member when motion of no-confidence is moved against Upa-Sarpanch of Panchayat, President or Vice-President of Mandal Parishad and Chairman or Vice-Chairman of the Zilla Parishad, as the case may be, under the Act as rightly contended by the learned Advocate-General.
62. In so far with regard to the contention of the learned Senior Counsel for the petitioners as to whether the amendment in G.O.Ms. No. 171, dated 19-4-1997 Under Section 245 read with Section 268 of the Act, is within the powers of Rule-making authority, there is sufficient force in his contention-for Section 245 of the Act deals with the mode or pattern of proceedings when a motion of no-confidence is moved to vote against Upa-Sarpanch of the Panchayat, President or Vice-President of Mandal Parishad and Chairman or Vice-Chairman of Zilla Parishad and the resultant disqualification of a member who votes against the political party whip. In this regard, various provisions of the Act, have to be looked into.
63. Section 153 of the Act, in so far it is relevant, deals with Election, reservation and term office of President and Vice-President for every Mandal Parishad and it speaks that President and Vice-President shall be elected by and from among the elected members specified in Clause (i) of subsection (1) of Section 149 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed and proviso-2 is added to Sub-section (1) of Section 153 to the effect that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
64. Section 181 (1) of the Act, in so far it is relevant, deals with the election of Chairman and Vice-Chairman and speaks that for every Zilla Parishad there shall be one Chairman and one Vice-Chairman who shall be elected by and from among the elected members specified in Clause (i) of Sub-section (3) of Section 177 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. Proviso-2 is also added to the section to the effect that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
65. It is significant to note that Section 153 (1) and 181 (1) of the Act provide for electing the members to the post of President and Vice-President for Mandal Parishad and Chairman and Vice-Chairman for Zilla Parishad and it is provided in the section itself that the elected members have to vote duly obeying the party whip given by such functionary of the recognized political party and that a member voting in disobedience of the party whip shall cease to hold the office forthwith and the vacancy caused by such cessation shall be filled by casual vacancy. As can be seen from it, there are similar provisions. The State Government has enacted similar provision both in the case of election of President and Vice-President for Mandal Parishad and Chairman and Vice-Chairman for Zilla Parishad and a proviso is added to the effect that a member voting in disobedience of the party whip shall cease to hold office. But, Under Section 245 of the Act, when a no-confidence motion is put to vote, there is no such restriction with regard to the members voting obeying the party whip nor there is any proviso added that an elected member voting in disobedience to the party whip shall cease to hold the office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.
66. In the absence of such a provision in the main Section 245 of the Act, the amendment effected to Rule 8 in G.O.Ms. No. 171, dated 19-4-1997 adding proviso and the explanations under the delegated authority of rule-making power, is in excess of delegative authority and is also not sustainable in law-for the rule made under the delegated authority cannot override the provisions of the Act, that is to say, where law does not provide, that cannot be done by a rule-making authority.
67. Though the State Government is not obliged to follow the Xth Schedule of the Constitution with regard to framing of provisions as per Xth Schedule for disqualification of the elected member of Panchayat or Mandal Parishad of Zilla Parishad in view of Article 243B of the Constitution as held by me supra, but the provisions can be taken as guidance from the Xth Schedule of the Constitution to frame the provisions by the State Government to disqualify an elected member of Village Panchayat or Mandal Parishad or Zilla Parishad, and where the authority is constituted, there shall be procedure for inquiry.
68. The Apex Court had an occasion to consider the ambit and scope of statutory rules framed under the delegative power in the following cases:
69. A three Judges Bench of the Apex Court while dealing with vires of Rule 14-A of the Madras General Sales-tax Rules, 1939 in State Bank of Kerala v. K.M.C. Abdulla and Co., : [1965]1SCR601 held in para -14 as under (Majority view per Justice Shaw & Sikri JJ):
'The Advocate General for the State of Kerala contends that Rule 14-A was validly made in exercise of the powers Under Section 19 and that in any event the Rule having by Sub-section (5) of Section 19 the effect as if it is enacted in the Act it is not liable to be declared invalid. The alternative ground advanced by the Advocate General may be easily disposed of. The rules made Under Section 19 and published in the Government Gazette have by the express provision to have effect as if enacted in the Act: but thereby no additional sanctity attaches to the rules. Power to frame rules is conferred by the Act upon the State Government and that power may be exercised within the strict limits of the authority conferred. If in making a rule, the State transcends its authority, the rule will be invalid, for statutory rules made in exercise of delegated authority are valid and binding only if made within the limits of authority concerned.'
70. In another case reported in M/s. Babubhai & Co. v. State of Gujarath, : [1985]3SCR614 , the Apex Court while considering the constitutional validity of Section 54 of the Bombay Town Planning Act (27/1995) and Rule 27 of the Bombay Town Planning Rules, observed in para-6 thus:
'It cannot be disputed that the absence of a provision for a corrective machinery by way of appeal or revision to a superior authority to rectify an adverse order passed by an authority or body on whom the power is conferred may indicate that the power so conferred is unreasonable or arbitrary but it is obvious that providing such corrective machinery is only one of the several ways in which the power could be checked or controlled and its absence will be one of the factors to be considered along with several others before coming to the conclusion that the power so conferred is unreasonable or arbitrary; in other words mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary, muchless would render the provision invalid. Regard will have to be had to several factors, such as on whom the power is conferred, whether on a high official or a petty officer, what is the nature of the power-Whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it to be exercised objectively by reference to some existing facts or tests, whether or not it is a quasi-judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc., the last mentioned factor particularly ensures application of mind on the part of the authority or body only to pertinent or germane material on the record excluding the extraneous and irrelevant and also subjects the order of the authority or body to a judicial review under the writ jurisdiction of the Court on grounds of perversity, extraneous influence mala fides and other blatant infirmities. Moreover all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision. If on an examination of the scheme of the enactment as also the purpose of the concerned provision, it is found that the power to decide or do a particular thing is conferred on a very minor or petty officer, that the exercise thereof by him depends on his subjective satisfaction, that he is expected to exercise the power administratively without any obligation to make a speaking order then, of course, the absence of a corrective machinery will render the provision conferring such absolute and unfettered power invalid. But it is the cumulative effect of all these factors that will render the provision unreasonable or arbitrary and liable to be struck down.'
71. The Apex Court had an occasion to consider Rule 9 (i) of Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules (1979) empowering the Corporation to terminate services of permanent employees without giving any reason and by giving notice, though it held that it is void Under Section 23 of the Contract Act and opposed to public policy; but it is also ultra vires of Article 14 of the Constitution in Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1573 wherein at para 99 it is held thus:
'Rule 9 (i) confers absolute and arbitrary power upon the Corporation. It violates one of the two rulesof Natural Justice - Audi alteram partem. It is not only in cases to which Article 14 applies that the rules of natural justice come into play. As pointed out in Union of India v. Tulsiram Patel (1985 (3) SCC 1416 at 1451) the principles of natural justice are not the creation of Article 14. Article 14 is not their begetter but their constitutional guardian. That case has traced in some detail the origin and development of concept of principles of natural justice and of the audi alterant partem rule. They apply in diverse situations and not only to cases of State action. As pointed by O. Chinnappa Reddy, J. in Swadesh Cotton Mills v. Union India : [1981]2SCR533 they are implicit in every decision-making function whether judicial or quasi-judicial or administrative.
72. A Constitution Bench of Apex Court has considered the delegation of Legislative powers - Nature and Permissible extent of and the duty of Court to test the validity in Devi Das v. State of Punjab, : [1967]3SCR557 wherein it is held at para-15 thus:
'The Constitution confers a power and imposes a duty on the Legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State. It cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the Executive or any other agency. But, there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms' it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the Legislature exceeded such limits. But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the Legislature.'
73. To scan the amendment effected by the State Government to Rule 8 issued Under Section s 245 read with 268 of the Act and in the light of the law laid down by the Apex Court in the four cases referred to supra, as already held by me Section 245 of the Act which deals with the procedure of motion of no-confidence of Upa-Sarpanch of Panchayat, President and Vice-President of Mandal Parishad and Chairman and Vice-Chairman of Zilla Parishad, does not direct the elected members to vote obeying the party whip given by the recognized political party and there is absence of the proviso which provides resulting cessation of office by a member voting in disobedience to the party whip as provided Under Section 153 (1) and 181 (1) of the Act for the election of President or Vice-President of the Mandal Parishad and Chairman or Vice-Chairman of the Zilla Parishad. As such, the State Government as the rule-making authority under the provisions of the Act cannot amend the rule under G.O.Ms. No. 171 and substitute a proviso as under:
'Provided that an elected member of a recognised political party shall cease to be a member if he votes in disobedience to the directions issued by the party whip.
Explanations:
(i) A recognised political party means a political party recognised by Election Commission of India, New Delhi;
(ii) Every recognised political party may appoint on behalf of that political party a whip, and such appointment shall be intimated by the State President or a person authorised by him, under his seal and such intimation shall be sent to the said officer so as to reach him before 10 a.m. on the day of the meeting convened to conduct the motion of no-confidence.
(iii) The said officer shall, on receipt of a written report sent by the party whip to the effect that a member belonging to his party has disobeyed the whip issued in connection with the meeting convened to express no-confidence within three days of the said meeting, declare in Form-VII that the said member has ceased to hold office and the order of the said officer shall be final.'
which overrides the provision Under Section 245 of the Act. Further, the explanations suffer from invalidity, as the said officer (Executive Authority) referred to therein has to mechanically pass an order without subjective satisfaction of the said authority or to be exercised objectively with reference to the existing facts or tests without the application of mind.
74. Taking into consideration the scheme of enactment of the Act, conferring of such power on the officer referred to in amended proviso to Rule 8 and explanation (iii) thereunder, is unreasonable and arbitrary and beyond the permissible limits of delegation.
75. Further, under Explanation (iii) to amended Rule 8 of the Rules, the order of the said officer referred to therein shall be final without giving an opportunity to the member to represent or of being heard or holding an enquiry with regard to the fact whether actually the political party whip has been served on the member or not. In the absence of any rules with regard to the procedure of serving the whip on the elected member of the party, the said officer has to pass an order merely on the intimation by the party whip to the effect that the member has voted in disobedience to the party whip, which clothes the party whip with unchecked absolute power and which is also arbitrary and opposed to the principles of natural justice.
76. It is to be noted that fundamental principle of fair-play requires that the person concerned should be given an opportunity to represent or to be heard before passing a final order against him, as the rules of principles of natural justice are implicit in every decision making function whether judicial, quasi-judicial or administrative as referred to in the Apex Court's Judgment in Central Inland Water Transport Corporation Ltd. v. Brojo Nath (referred to 4 supra), which is unreasonable and arbitrary and suffers from the vice of excess of power vested in the rule making authority and offends Article 14 of the Constitution.
77. In the light of the views expressed by me in the foregoing paragraphs-59 to 76, I hold that amendment to Rule 8 effected in G.O.Ms. No. 171, Panchayat Raj and Rural Development (Mandal-I), dated 19-4-1997, is invalid and beyond the power of rule making authority Under Section 245 read with Section 268 of the A.P. Panchayat Raj Act and it also violates Article 14 of the Constitution. This point is answered accordingly.
78. In the result, in view of my finding on Point No. 2 and in the light of the guidelines laid down by the Apex Court, I strike down the amendment to Rule 8 issued by the State Government in G.O.Ms. No. 171, Panchayat Raj and Rural Development (Mandal-I) Department, dated 19-4-1997. Accordingly, the writ petition is allowed. In the circumstances, there will be no order as to costs.