Kurian Joseph, J.
1. 'Sports for all' is the concept with which the Kerala Sports Act, 2000 (hereinafter referred to as 'the Act') was enacted. Though Kerala has been in the forefront in sports and games, it appears only in the year 2000, a comprehensive legislation was enacted for the purpose of sports and games, for augmenting the athletic efficiency in the Stale, and also for the purpose of constitution of Sports Councils at the State, District and local levels. The 'sportsman spirit' even thereafter appears to have been exhibited more in the field of legislation and litigation. Though the Act was brought into force in the year 2001, the State Sports Council has not so far been constituted. One reason, the learned Standing Counsel for the Council points out is that the election to the District Sports Councils have not been completed, and the litigation before us pertains to the constitution of one such District Sports Council- Calicut.
2. When steps were taken to constitute the District Sports Council, Calicut, by election scheduled to take place on 31.10.2008, W.P.(C) 31914/08 was filed before this Court. It was pointed out that whole proceedings for election were vitiated mainly on two grounds, among several other alleged vitiating factors; (1) right to vote ought to be restricted only to the elected members and (2) the Returning Officer had delegated his powers to another officer. As per Ext.P2 communication from the Secretary to Government, it was informed to the Secretary to the Kerala Sports Council that in the election to the Executive Committee of the District Sports Council, voting right cannot be restricted to the elected members only. It was clarified that the ex-officio as well as nominated members are also having the right to vote.
3. Section 2(viii) of the Act defines 'Member' as 'a member of State Sports Council or District Sports Council or Corporation Sports Council or Municipal Sports Council or Town Sports Council or Block Sports Council or Village Sports Council whichever is relevant to the context.' Section 3(3) provides that Kerala State Sports Council shall consist of three types of members; Ex-officio Members, Elected Members and Nominated Members. Section 9 under Chapter III provides for the constitution of District Sports Councils. Section 9(3) provides that every District Sports Council shall consist of Ex-Officio Members, Elected Members and Nominated Members. Section 9(4) provides that there shall be a President and Vice President for every District Sports Council elected from among the members of that council. Section 11 provides for election to the Executive Committee of the District Sports Council.
4. The crucial dispute as raised in these cases pertains to the dispute regarding the eligibility of the members of the District Sports Council to participate in the election proceedings. Sri. P. Ravindran, learned senior counsel appearing for the writ petitioner, inviting reference to Rule 123 of the Kerala Sports Rules, 2008 (hereinafter referred to as 'the Rules') submits that only the elected members to the District Sports Council are entitled to exercise their right to vote for election to the Executive Committee. Rule 123(1) reads as follows:
The Returning Officer shall issue a ballot paper to every elected member of a council, who wishes to vote in the election to a Standing Committee or Executive Committee, as the case may be, and the ballot paper shall contain the names of all the contesting candidates.
As per Ext.P2 clarification referred to above, the Secretary to Government informed the Sports Council that the parent Act provides for voting right to all the members whether they be Ex-officio, Nominated and Elected, and hence the Rules cannot restrict the right to exercise the vote to elected members only. Section 11 reads as follows:
11. Executive Committee of the District Sports Council - (1) There shall be an Executive Committee of the District Sports Council consisting of its President, Vice-President, Secretary and six members elected by the District Sports Council from among its members, of whom one shall be a woman.
The learned Single Judge upheld the clarification holding that the Rules cannot have a different intention than what is provided under the parent Act. However, the proceedings for election were set aside on the ground of a patent illegality, viz., the Returning Officer had delegated his powers to another officer. Therefore, it was directed that the Returning Officer should conduct the election in the manner as contemplated in the Act and in Rule 123 of the Rules.
5. While so, it is seen that the rule making authority, in exercise of its power under Section 45 of the Kerala Sports Act, 2000 amended the rules in order to remove the difficulty, by deleting the word 'elected', as appearing in Rules 123 and 124 of the Rules. In the notification dated 24.2.2009 published in the gazette, it is provided that the amendment would come into force from 17.7.2008, i.e., the date of coming into effect of the Kerala Sports Rules, 2008. There is no quarrel to the legal position that the rule making authority is entitled to amend the rules either prospectively or retrospectively. But the contention of the learned senior counsel is that this Court interfered with the election originally scheduled to take place on 31.10.2008 only on the irregularity of the Returning Officer delegating his powers and therefore, the election should be treated as a continuation of the original notification issued on 5.10.2008. We are afraid, the contention cannot be appreciated. The learned Single Judge has in fact directed election to be conducted in accordance with the Act and Rules and hence the fresh election has to be a de-novo election for all purposes. The three other contentions are; (1) in the absence of challenge to the Rules, the learned Single Judge went wrong in interpreting the Rules and declaring that all the members to the District Sports Council are entitled to participate and vote in the election to the posts of President and Vice President, and to the Executive Committee, (2) the right to vote is conferred only by the Rules and not by the Act, and (3) it is the District Council, which is the body corporate in terms of Section 9(1) of the Act and that body is entitled to vote and not its members. There is also a serious contention on the non-compliance to Rule 72 of the Rules and more particularly, Rule 82. We shall first deal with the contention regarding the absence of challenge to the rules.
6. W.P.(C) No. 31914/08 was filed by the petitioner/appellant for a declaration that the election to the Executive Committee to the District Sports Council has to be conducted strictly in terms of Rule 123 of the Kerala Sports Rules. There was also a prayer to the effect that the clarification regarding the eligibility of all the members to participate in the election proceedings is illegal. The third prayer was for a direction to the Returning Officer to permit only the elected members to cast their vote in the election. As we have already noted, the District Sports Council is constituted in terms of Section 9 of the Act. To the extent relevant, the provision reads as follows:
9. District Sports Council - (1) The Government shall by notification, constitute a body to be called 'The District Sports Council' in every district in the State to exercise the powers and perform the functions conferred on, or assigned to, the District Sports Council under this Act.
(2) Every District Sports Council, shall be a body corporate by the name of the District for which it is constituted, having perpetual succession and common seal with power subject to the provisions of this Act and the rules made thereunder, to acquire, hold and dispose of movable and immovable properties, to enter into contracts and to do all matters proper and expedient for the purpose for which it is constituted and shall by the said name sue and be sued.
Section 9(3) provides that every District Sports Council shall consist of Ex-officio Members, Elected Members and Nominated Members. Sub-section (4) provides that there shall be a President and Vice President for every District Sports Council elected from among the members of that council as may be prescribed in the Act. Section 11 provides for the constitution and method of election to the Executive Committee of the District Sports Council, which we have already extracted hereinabove. The vehement contention advanced by the learned senior counsel is that the District Sports Council being a body corporate in terms of Section 9(2), can only vote or elect the six members. We are afraid, the contention cannot be appreciated. The six members to the Executive Committee of the District Sports Council are to be elected from among its members. The expression 'District Sports Council' in terms of the election to be thus conducted can only be understood in terms of its constitution, consisting of Ex-officio, Elected and Nominated Members. The scheme of the Act itself would indicate only such an interpretation. In the case of Kerala Sports Council, the apex forum, the President is nominated by the Government and the Vice President is elected by the members of the Sports Council from among the elected members. For the Standing Committee of the apex body, viz., the State Sports Council, five members are to be elected by the members of the State Sports Council from among the elected members. Though the learned senior counsel made an attempt to contend that the right to elect also is to be restricted to the elected members, the contention was not pressed in view of the clear provision in the statute that right to vote is given to all the members and the restriction is only in respect of right to be voted. Therefore, it is not the body corporate which elects the members, but the members of the body corporate which elect the six members to the Executive Committee to the District Sports Council. True, it is not stated in the provision that the election is by the members of the District Sports Council; but going by the scheme of the Act and method of election as prescribed under the Act, the expression of the intention has to be read into the provision. It is not as if the District Council exercising its vote in another body. The Council is electing its own Executive Committee. That exercise can only be by the members. That alone would serve a purposive and meaningful interpretation facilitating the election.
7. Right to elect and right to be elected, wherever required are distinctly provided under the Kerala Sports Act. As noted above, the Council at the apex and other levels consist of Ex-officio, Elected and Nominated members. Wherever the legislature intended the right to be elected to be restricted to apply only to the elected members, the same has been specifically provided as in Sections 3(4), 6(h) and 9(11). Therefore, on the only ground that right to be elected is restricted to the class of the elected members, it cannot be understood that the right to vote also is restricted to the elected members. The legislature in its wisdom having provided for such a policy, it is not proper for the court to interpret the provision in any other manner.
8. It is true that there is no challenge to the rules as such before the learned Single Judge. But in order to decide the question raised before the learned Single Judge regarding the interpretation of Rule 123 of the Rules, necessarily the court has to interpret the scheme of the Act and the Rules. If the Act provides for right to vote to all the members without any distinction as to whether they are ex-officio, elected or nominated, the rules cannot provide for a different procedure or different approach restricting such right. It was in that context, the learned Single Judge held that the election has to be conducted as provided under the Act. It is now well settled that in case there is a conflict between the parent Act and the subordinate legislation i.e., the Rules, the provisions of the parent act will hold good and govern the field. In Ispat Industries Ltd. v. Commissioner of Customs, Mumbai (2006) 12 S.C.C. 583, the Supreme Court held that ....'if there is any conflict between provisions of the Act and the provisions of the Rules, the former will prevail...'. The Apex Court, referring to the Gunapradhan axiom of the Mimansa Principles of Interpretation, the indigenous system of interpretation, held at paragraph 32 as follows:
One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilising it in this judgment we may describe it in some detail. 'Guna' means subordinate or accessory, while 'pradhan' means principal. The Gunapradhan Axiom states:
If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether
This principle is also expressed by the popular maxim known as 'matsya nyaya' i.e. 'the bigger fish eats the smaller fish'.
There is also a reference by the apex court to the General Theory of Law and State and in that connection, it was observed at paragraph 27 as follows:
In this connection it may be mentioned that according to the theory of the eminent positivist jurist Kelson (the pure theory of law) in every legal system there is a hierarchy of laws, and whenever there is conflict between a norm in a higher layer in this hierarchy and a norm in a lower layer, the norm in the higher layer will prevail.
It is also an equally well settled principle that the stream cannot rise above the source. Rules are made by way of subordinate legislation. That power is derived from the parent act only. The Act is the source and the subordinate legislation is only a stream.
9. The amendment brought to the Rules is only for the purpose of removing the difficulty caused by the apparent conflict. Rule 123 of the Rules as it originally stood, provided for election to the Executive Committee of the District Council, enabling only the elected members to vote. But the said provision being in conflict with Section 11 of the parent Act, the rule making authority, in exercise of its power under Section 45 has rightly removed that conflict by the amendment brought into force by notification dated 24.2.2009, with retrospective effect from 17.7.2008.
10. The other contention is with regard to the procedure for election as prescribed under Chapter IX of the Rules starting with Rule 72. The Rule reads as follows:
72. Conduct of Election-The election of office-bearers and the Standing Committee members of the Kerala Sports Council as well as office-bearers and Executive Committee members of the District Sports Council, the Corporation Sports Council, the Municipal Sports Council and the Village Sports Council shall be conducted in the manner hereinafter prescribed.
It is hence contended that under Rule 77, an Electoral Roll has to be prepared and maintained, the same has to be published as per the time schedule prescribed under those rules. As per Rule 82, the election has to be notified. Rule 82 reads as follows:
82. Notification of election-When any vacancy occurs or is about to occur by efflux of time, among the members of the Council which has to be filled up by election, or if an election, has to be conducted for the constitution or reconstitution of the Council according to the provisions of the Act and these rules, the Returning Officer shall notify the fact in the offices of all the various Councils under the Act and also simultaneously cause the notification to be published in two news papers approved by the State Sports Council for the purpose. The notification of election shall contain the programme of the election from the date of notification of the election giving the following particulars namely:
(i) Date of notification;
(ii) Last date for receipt of nominations;
(iii) Date of scrutiny of nomination and publication of list of candidates validly nominated;
(iv) Last date and hour for withdrawal of candidature;
(v) Date of publication of the final list of candidates;
(vi) Date of issue of ballot paper;
(vii) Date and hour fixed for the poll;
(viii) Date and hour of scrutiny and counting of votes.
Though it is contended that the election notification has to be published in the gazette as required under Section 2(x) of the Act, the contention cannot be appreciated. The rule specifically provides for a method of notification. In the absence of a prescribed method of notification, the contention could have been appreciated. The rule making authority has provided that the election notification has to be published in the offices of various Councils and also simultaneously published in two news papers. Once the rule provides for a particular mode of notification, that method alone need be followed; there is no need to publish in the gazette. However, in the instant case, admittedly the election notification has not been published in the news papers. But the question is whether Rule 82 applies at all in the case of election to the posts of President and Vice President to the District Sports Council and to the Executive Committee. As pointed out by the learned Standing Counsel for the Sports Council, the counsel appearing for the respondents and also the learned Government Pleader, election to the President and Vice President of District Council is specifically dealt with under Rule 109 under Chapter DC. The procedure to that election has been specifically noted under Rules 110 to 117 of the Rules. Election to the Standing Committee and Executive Committee is provided under Rule 118 and the procedure is prescribed under Rules 119 to 123. Once specific modes are prescribed under the Rules providing for the manner and method of conduct of election to the posts of President and Vice President of the District Council and Executive Committee or the Standing Committee, as the case may be, Rule 82 has no application. There is no violation of Rule 72 in the process since what is provided under Section 72 is that election to the Executive Committee of the District Sports Council and the office-bearers to the various offices are to be conducted in the manner-'hereinafter prescribed'. Rules 109 to 123 are also rules prescribed under Chapter IX, in terms of Rule 72. When there is a specific rule providing for the procedure to be followed in the conduct of election to the various offices, that would necessarily exclude the general rule with regard to the conduct of election. Such an interpretation is also justified on the well settled principle of interpretation that 'the special excludes the general'. We may also in this context significantly note that Rules 73 to 108 provide for election of elected members to the State Sports Council and other bodies and only Rules 109 onwards provide for the procedure to be followed in the matter of election to the Executive Committee, Standing Committee and other office bearers of the election. In those cases, it is not necessary to go for publication in the news papers since the service of notice has been prescribed specifically under Rules 109 to 123. This is for the reason that in such cases, the constituency is small and identifiable and the service of notice to them is possible by personal service. In the instant case, it is brought to our notice that the Electoral College consists only of 60 members. It is also submitted by the learned Standing Counsel that to those members, notices have been served by registered post Learned senior counsel submits that only 53 have participated in the election and the rest have not turned out for the reason that they have not been served with the notice. It is pointed out that those members also have been served the election notification. Be that as it may, there is no complaint from any member that he could not participate in the election for want of intimation.
11. Though the learned senior counsel invited reference to various decisions reported in (1) State Trading Corporation of India Ltd. v. The Commercial Tax Officer and Ors. AIR 1963 S.C. 1811, (2) State of Punjab v. Gurdev Singh AIR 1991 S.C. 2219, (3) Pune Municipal Corporation v. State of Maharashtra : (2007) 5 S.C.C. 211, we do not think that in the nature of the view we have already taken, it is necessary to advert to those decisions, since we have no quarrel with those well settled propositions in the decisions. Only thing is that those principles have no application to the fact situation and legal position in the present case. The emerging position both on facts and on law is that the election to the posts of President and Vice President of the District Sports Council has to be conducted in terms of Section 11 of the Act read with Rules 109 to 123. Thus all the members, whether they be ex-officio, elected or nominated, are entitled to exercise their right to vote. But right to be voted in the case of members of the Executive Committee-is to be restricted-to-the class of elected members in the District Council. In that view of the matter, we find that election has been conducted as per Ext.P4 in W.P.(C) 8771/09, in terms of the interpretation given in this judgment and hence W.P. (C) 877 ]/09 is dismissed. In view of the factual and legal position explained by us above, W A695/09 is dismissed.