Lakshmappa Kallappa Balaganur and Another Vs. State of Karnataka and Others - Court Judgment

Excerpt:
- contempt of courts act, 1971 -- sections 15(1)(b) & 23 & high court of karnataka (contempt of court proceedings) rules, 1981, clause (v) of rule 5; [dr.k. bhakthavatsala, j] whether the consent of the advocate general is mandatory to initiate proceedings for criminal contempt of subordinate courts? held, as per clause (b) of sub-section (1) of section 15 of the act in the case of a criminal contempt, other than a contempt referred to in section 14, the supreme court or the high court may take action on its own motion or on a motion made by any other person, with a written consent of the advocate general. the high court of karnataka, in the exercise of powers conferred under article 215 of the constitution of india and section 23 of the act, and all other powers enabling in that behalf, to regulate the proceedings for contempt of itself or of a court subordinate to it has made rules viz., the high court of karnataka (contempt of court proceedings) rules, 1981. as per clause (v) of rule 5 of the contempt rules, the complainant shall state whether he has obtained the consent of the advocate general and if so, produce the same. it further says that nothing shall preclude the high court from taking action suo motu on the basis of the information disclosed. under section 15(1)(b), it is for the competent court to take action for contempt of court not only on a motion being made by the advocate general, but also on a motion made by any person with or without the consent in writing of the advocate general. therefore, obtaining consent of the advocate general to initiate criminal contempt proceedings is not mandatory. - the adhyaksha of the panchayat having failed to convene a meeting as required, the chief executive officer of the panchayat, pursuant to the requisition dated 23rd of february, 1999 given by one-third of the members of the panchayat as provided under sub-section (2)(a) of section 180 of the act, issued a notice dated 25th of february, 1999 convening a special meeting of the panchayat on 6th of march, 1999 to consider the said no confidence motion moved against petitioners 1 and 2. a copy of the said notice dated 25th of february, 1999 issued by the second respondent has been produced as annexure-b in writ petition no. and in the instant case, the petitioners having failed to discharge the burden placed on them under law, are not entitled for the relief sought for by them in these petitions. 15. it is well-settled that if a provision in a statute runs counter to the constitutional provision, the provision in the statute to the extent of conflict or inconsistency requires tc be declared as void and unenforceable on the ground that it is unconstitutional. 13. the insistence upon constitutional provision even withrespect to fixing the term of office of the chairpersons would have disastrous results.order1. the questions that would arise for consideration in all these petitions, are the same and identical. hence, all these petitions are heard together and disposed of by this common order.2. the substantial question that would arise for consideration in these petitions is with regard to the constitutional validity of sub-section (2) of section 159 and sub-section (3) of section 179 of the karnataka panchayat raj act, 1993, insofar as they do not permit the non-elected members of zilla panchayat to participate and vote in the meeting convened for the purpose of considering the 'no confidence motion' moved against the adhyaksha and upadhyaksha of the panchayat.3. petitioners 1 and 2 in writ petition no. 7131 of 1999 are the adhyaksha and upadhyaksha of bagalkot zilla panchayat, bagalkot (hereinafter referred to as 'the panchayat'). they were so elected as adhyaksha and upadhyaksha of the panchayat in the election held on 22nd of april, 1998. the term of office of adhyaksha and upadhyaksha is 20 months.4. the petitioner in writ petition no. 6870 of 1999 is an elected member of the legislative council from bijapur constituency.5. the petitioner in writ petition no. 6557 of 1999 is an elected member of the legislative council from bagalkot district representing local body of the district.6. the petitioner in writ petition no. 6558 of 1999 is a member of the legislative assembly from badami constituency, which is a part of bagalkot district.7. bagalkot zilla panchayat was earlier part of bijapur zilla panchayat. consequent upon the bifurcation of bijapur district as two districts viz., bijapur district and bagalkot district, bagalkot zilla panchayat came to be constituted. bagalkot zilla panchayat consists of 27 elected zilla panchayat members; six taluk panchayat adhyakshas; seven members of the legislative assembly; four members of the legislative council and one member of the parliament; and in all, the panchayat consists of 45 members.8. by means of an amendment made to the constitution by means of the constitution (seventy-third amendment) act, 1992, part ix consisting of articles 243 to 243-o came to be incorporated into the constitution and the same had come into force with effect from 24th of april, 1993. article 243b of the constitution provides for the constitution of panchayats at the village, intermediate and district levels in accordance with part dc of the constitution. the state of karnataka has passed an act (act no. 14 of 1993) known as karnataka panchayat raj act, 1993 (hereinafter referred to as 'the act'), which came into force with effect from 10th of may, 1993. section 158 of the act provides for the establishment of zilla panchayat. section 159 of the act provides for theconstitution of zilla panchayats and the said section, as amended by means of act no. 29 of 1997, reads as hereunder:'159. constitution of zilla panchayat.--(1) every zillapanchayat shall consist of,-- (i) the elected members as determined under section 160; (ii) the members of the house of people and the members of the state legislative assembly representing a part or whole of the district whose constituencies lie within the district; (iii) the members of the council of state and the members of the state legislative council who are registered as electors within the district; and (iv) the adhyakshas of taluk panchayats in the district. (2) the members of the house of people, the state legislative assembly, the council of states and the legislative council and the adhyaksha of taluk panchayat referred to in clauses (ii), (iii) and (iv) of sub-section (1) shall be entitled to take part in the proceedings of, and vote at, the meetings of zilla panchayat except at a special meeting convened for the purpose of election of adhyakshas and upadhyakshas under sub-section (1) of section 177 or for considering a no confidence motion under sub-section (3) of section 179. (3) notwithstanding anything contained in this section or sections 160, 161 and 162 but subject to any general or special orders of the government, where two-thirds of the total number of members of any zilla panchayat required to be elected, have been elected, the zilla panchayat shall be deemed to have been duly constituted under this act'. section 177 of the act provides for the election of adhyaksha, upadhyaksha and term of their office. section 179 of the act provides for the resignation or removal of adhyaksha and upadhyaksha of a panchayat. sub-section (3) of section 179 of the act, which provides for removal of adhyaksha and upadhyaksha of the panchayat by expressing want of confidence in them, reads as follows:'179. resignation or removal of adhyaksha and upadhyaksha.- (1)..... (2)..... (3) every adhyaksha and every upadhyaksha of zilla panchayat shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the zilla panchayat at a meeting specially convened for this purpose: provided that no resolution expressing want of confidence in an adhyaksha or upadhyaksha shall be made within six months from the date of his election: provided further that where a resolution expressing want of confidence in any adhyaksha or upadhyaksha has been considered and negatived by the zilla panchayat, a similar resolution in respect of the same adhyaksha or upadhyaksha shall not be given notice of, or moved, within six months from the date of the decision of the zilla panchayat.....'. (emphasis supplied) section 180 of the act provides for the meetings of zilla panchayat.9. a resolution was moved expressing want of confidence against adhyaksha and upadhyaksha of the panchayat. the adhyaksha of the panchayat having failed to convene a meeting as required, the chief executive officer of the panchayat, pursuant to the requisition dated 23rd of february, 1999 given by one-third of the members of the panchayat as provided under sub-section (2)(a) of section 180 of the act, issued a notice dated 25th of february, 1999 convening a special meeting of the panchayat on 6th of march, 1999 to consider the said no confidence motion moved against petitioners 1 and 2. a copy of the said notice dated 25th of february, 1999 issued by the second respondent has been produced as annexure-b in writ petition no. 7131 of 1999.10. aggrieved by the said meeting notice, the petitioners have filed these petitions challenging the constitutional validity of sub-section (2) of section 159 and sub-section (3) of section 179 of the act insofar as they prohibit the non-elected members of the panchayat from participating and voting in the meeting convened for the purpose of electing the adhyaksha and upadhyaksha of the panchayat and also for considering the 'no confidence motion' moved against the adhyaksha and upadhyaksha. they have also challenged the validity of the meeting notice annexure-b, dated 25th of february, 1999 and also sought for a direction to the respondents to permit the members of the legislative assembly, members of the legislative council, members of the parliament and also adhyakshas of the taluk panchayats, who are members of the panchayat, to vote in every meeting of the panchayat.11. sri udaya holla, learned counsel appearing for the petitioners in writ petition no. 7131 of 1999; sri c.h. jadhav, learned counsel appearing for the petitioners in writ petition nos. 6557 and 6558 of 1999; and sri laxminarayan, learned counsel appearing for the petitioner in writ petition no. 6870 of 1999, submitted that sub-section (2) of section 159 of the act to the extent it prevents the members of the panchayat, who fall under clauses (ii), (iii) and (iv) of sub-section (1) of section 159 of the act, from participating in the proceedings of, and voting at the special meeting of the panchayat convened for considering no confidence motion moved against adhyaksha and upadhyaksha of the panchayat under sub-section (3) of section 179 of the act, is illegal, unconstitutional and void in law inasmuch as the said provision runs counter to clause (4) of article 243-c of the constitution of india. they also submitted that sub-section (3) of section 179 of the act to the extent it provides that every adhyaksha and upadhyaksha of a zilla panchayat shall be deemed to have vacated their office if a resolution expressing want ofconfidence in them is passed by a majority of the total number of elected members of the panchayat at a meeting specially convened for the said purpose, is unconstitutional and void in law. in other words, it is their submission that the limitation imposed under sub-section (2) of section 159 and sub-section (3) of section 179 of the act limiting the rights to only the elected members of the panchayat who fall under clause (i) of sub-section (1) of section 159 of the act to participate and vote in the meeting convened for the purpose of considering the no confidence motion moved against adhyaksha and upadhyaksha of the panchayat, is unconstitutional. in support of this submission, they drew my attention to article 243c of the constitution and more particularly, clause (4) thereof. it is their submission that since clause (4) of article 243c of the constitution mandates that every chairperson of a panchayat and other members of a panchayat whether or not chosen by direct election from territorial constituencies in the panchayat area shall have the right to vote in the meetings of the panchayat, sub-section (2) of section 159 and sub-section (3) of section 179 of the act to the extent they take away the rights of non-elected members of the panchayat from participating and voting in the meeting convened for the purpose of considering the no confidence motion against the adhyaksha and upadhyaksha of the panchayat, are unconstitutional as the said provisions directly contravene clause (4) of article 243c of the constitution. they pointed out that in case of conflict between a provision in the statute and the constitution, the constitutional provision being paramount, must prevail over the statute and the provision in the statute to the extent of conflict and inconsistency, must be declared as void. in support of this plea, they also relied upon a decision of the allahabad high court in the case of amin and another v state.12. however, sri nagarajappa, learned additional government advocate, strongly repelling the argument of learned counsel for the petitioners, submitted that there is no conflict between clause (4) of article 243c of the constitution and sub-section (2) of section 159 and sub-section (3) of section 179 of the act as sought to be made out by the learned counsel appearing for the petitioners. he pointed out that clause (4) of article 243c must be read along with clause (1) of article 243c of the constitution; and if it is so read, it would be clear that what is provided under clause (4) of article 243c of the constitution is the outer limits within which a legislation could be made by the state legislature and, therefore, it was within the legislative competency of the state legislature to make a law providing for the procedure or provide for the rights to such of the members of the panchayat to elect adhyaksha or upadhyaksha of the panchayat or to consider the motion moved for removal of adhyaksha or upadhyaksha by expressing no confidence. in this connection, he referred to me entry 5 of list ii of the seventh schedule to the constitution. in other words, it is his submission that when the legislature is fully competent to make a legislation, the impugned provisions cannot be nullified on the ground that the said provisions are inconflict with clause (4) of article 243c of the constitution. according to him, since the legislature has the legislative competency to pass the impugned provisions, the provisions contained in clause (4) of article 243c of the constitution and the impugned provisions must be so understood and read to uphold the constitutional validity of the impugned provisions and not to nullify it. he also relied upon the decision of this court in the case of b. javarayagouda v state of karnataka and that of the supreme court in the cases reported in state of andhra pradesh and others v mcdowell and company and others, chaturbhai m. patel v union of india and others, state of karnataka and another v ran-ganatha reddy and another, sri nagarajappa also submitted that the rights to participate in the meeting convened either to elect the adhyaksha or upadhyaksha of the panchayat or to consider the motion of no confidence moved against them or to vote in the said proceedings, is not a fundamental right. he also submitted that there is presumption in favour of the constitutional validity of a provision in the statute; and in the instant case, the petitioners having failed to discharge the burden placed on them under law, are not entitled for the relief sought for by them in these petitions.13. sri ravindra patil, learned counsel appearing for the contesting respondents, reiterated the submissions of sri nagarajappa with equal vehemence and clarity.14. in the light of the rival contentions advanced by the learned counsel appearing for the parties, as noticed by me earlier, the only question that would fall for my consideration is whether sub-section (2) of section 159 and sub-section (3) of section 179 of the act to the extent they are assailed, are unconstitutional and void in law?15. it is well-settled that if a provision in a statute runs counter to the constitutional provision, the provision in the statute to the extent of conflict or inconsistency requires tc be declared as void and unenforceable on the ground that it is unconstitutional. the source of power to legislate on a subject is quite distinct and different from the validity of law made when it has to be tested with the parameters laid down under the constitution. no doubt, as pointed out by sri nagarajappa, in view of entry 5 of last ii of the seventh schedule to the constitution, the state legislature has the legislative competency to pass the panchayat raj act and also pass the impugned provisions. but, if the provisions impugned come in conflict or run counter to the mandate of clause (4) of article 243c of the constitution, as contended by learned counsel appearing for the petitioners, merely because the state legislature has the legislative competency to pass the impugned provision, it does not make the said provision constitutionally valid. though the state legislature has the legislative competency to pass the impugned provisions, still if the said provisions run counter to the provisions contained in clause (4) of article 243c of the constitution, in my considered view, the said provisions to the extent of inconsistency and conflict require to be declared as unconstitutional and null and void. therefore, the real question that would arise for consideration is whether the provisions impugned run counter to clause (4) of article 243c of the constitution of india as sought to be made out by learned counsel appearing for the petitioners?16. clause (4) of article 243c of the constitution reads as hereun-der:'243-c. composition of panchayats.- ..... (4) the chairperson of a panchayat and other members of a panchayat whether or not chosen by direct election from territorial constituencies in the panchayat area shall have the right to vote in the meetings of the panchayats'. a reading of clause (4), extracted above, does not give any scope for any doubt that all the members of the panchayat, whether or not chosen by direct election from territorial constituencies in the panchayat area, shall have the right to vote in the meetings of the panchayat. clause (1) of article 243c of the constitution empowers the state legislature subject to part ix of the constitution, to make a law providing for composition of the panchayats. clause (2) of article 243c of the constitution provides that all seats in a panchayat shall be filled by persons chosen by direct election from territorial constituencies in the panchayat area. further, clause (3) of article 243c of the constitution empowers the state legislature by law to provide for the representation (a) of the chairpersons of the panchayats at the village level, in the panchayats at the intermediate level or, in the case of a state not having panchayats at the intermediate level, in the panchayats at the district level; (b) of the chairpersons of the panchayats at the intermediate level, in the panchayats at the district level; (c) of the members of the house of the people and the members of the legislative assembly of the state representing constituencies which comprise wholly or partly a panchayat area at a level other than the village level, in such panchayat; and (d) of the members of the council of states and the members of the legislative council of the state. therefore, from the reading of clauses (1) and (3) of article 243c of the constitution, it is clear that the state legislature is conferred with the power to make law providing for constitution of the panchayats of various categories who fall under sub-clauses (a) to (d) of clause (3) of article 243c of the constitution of india. consistent with the said constitutional provision, the state legislature has constituted panchayats in the state under sub-section (1) of section 159 of the act. clause (4) of article 243c of the constitution, as observed by me earlier, in unequivocal terms, states that the chairperson of a panchayat and other members of a panchayat, whether or not chosen by direct election from territorial constituencies in the panchayat area, shall have the right to vote in the meetings of thepanchayat. clause (d) of article 243 of the constitution defines 'panchayat' to mean an institution (by whatever name called) of self-government constituted under article 243b, for the rural areas. therefore, i have no doubt in my mind that all the members of the panchayat who constitute a panchayat under clauses (i) to (iv) of sub-section (1) of section 159 of the act shall have the right to vote in all the meetings of the panchayat, however, subject to an exception made under clause (5) of article 243c of the constitution. clause (5) of article 243c of the constitution reads as follows:'(5) the chairperson of- (a) a panchayat at the village level shall be elected in such manner as the legislature of a state may, by law, provide, and (b) a panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof. from sub-clause (a) of clause (5) of article 243c of the constitution, it is clear that the state legislature is conferred with a power to make a law providing for the procedure to elect the chairperson of a panchayat at the village level. however, sub-clause (b) of clause (5) thereof specifically states that the chairperson of a panchayat, at the intermediate level or district level, shall be elected by and from amongst the elected members thereof. therefore, the constitution-makers were fully conscious of the rights of the members of the panchayat to vote in a meeting of the panchayat convened for the purpose of election of the chairperson of a panchayat at the intermediate level or district level and the meetings of the panchayat convened for other purposes. therefore, when clause (4) of article 243c of the constitution mandates that all the members of the panchayat, whether or not chosen by direct election from territorial constituencies in the panchayat area, shall have the right to vote in the meetings of the panchayat, in my view, it is not permissible for the state legislature to take away the constitutional rights guaranteed to the members of the panchayat who fall under clauses (ii) to (iv) of sub-section (1) of section 159 of the act to participate in the meetings and vote at the meetings convened for the purpose of considering the no confidence motion moved against the adhyaksha or upadhyaksha of the panchayat. further, when the provisions made under part ix of the constitution provide for the constitution of panchayats, the terms of the members of the panchayat, the reservations to be made in the panchayats, any law made, which runs counter to the said constitutional rights, requires to be declared as unconstitutional and void in law. the division bench decision of this court in the case of javarayagouda, supra, strongly relied upon by sri nagarajappa, in my view, has absolutely no bearing to the facts of the present case. in the said decision, the division bench of this court has upheld the constitutional validity of sub-section (3) of section 138 of the act curtailing the term of the adhyaksha and upadhyaksha of the panchayat on the ground that neither article 243e nor any other article in part ix of the constitution, refers to the terms of the adhyaksha and upadhyaksha of a panchayat and, therefore, sub-section (2) of section 138 is not uncon-stitutional. this is clear from the observations made in paragraphs 10 and 13 of the judgment, which read as hereunder:'10. neither article 243e nor any other article in part ix of the constitution refers to the term of the adhyaksha or upadhyaksha of the panchayat constituted in accordance with law enacted in pursuance of entry 5, list ii of the vii schedule of the constitution. 13. ..... the insistence upon constitutional provision even withrespect to fixing the term of office of the chairpersons would have disastrous results. the union parliament never intended to fix the term of office of the adhyaksha and upadhyaksha and opted to restrict the term of the panchayat as a body corporate only. none of the petitioners has been deprived of any right accruing to him under article 243e of the constitution, as the term of office to which he was elected as member of the panchayat has not been restricted or taken away. it cannot be said that while incorporating chapter ix in the constitution, it was intended to make the office of the adhyaksha and upadhyaksha coterminous with the office of the panchayat. we are, therefore, of the opinion, that the state legislature had the power and was competent to enact the amendment act which has been impugned in these petitions'. therefore, sub-section (2) of section 159 and sub-section (3) of section 179 of the act to the extent they take away the rights of the members of the panchayat who fall under clauses (ii) to (iv) of sub-section (1) of section 159 of the act, to participate and vote in the meeting convened for the purpose of considering the 'no confidence' motion moved against the adhyaksha or upadhyaksha of the panchayat, are required to be declared as illegal, void and unconstitutional. consequently, the meeting notice dated 25th of february, 1999 issued by the chief executive officer of the panchayat convening the meeting of only the elected members of the panchayat to consider the no confidence motion moved against the adhyaksha and upadhyaksha of the panchayat, is also required to be quashed as illegal and void in law.17. though the petitioners have prayed that sub-section (2) of section 159 of the act, insofar as it prohibits the non-elected members of the panchayat from voting in the election to the office of adhyaksha and upadhyaksha of the panchayat, also should to be declared as void and unconstitutional, however, at the hearing of the petition, no argument was advanced by the learned counsel for the petitioners in that regard. in my view, rightly the said contention is not pursued because sub-clause (b) of clause (5) of article 243c of the constitution provides that the chairperson of a panchayat, at the intermediate level or district level, shall be elected by and from amongst, the elected members of the panchayat. therefore, the mandate of clause (5)(b) of article 243c of the constitution is that the chairperson of the panchayat, at the intermediate level or district level, should be elected by, and from amongst the elected members of the panchayat only. therefore, the provision contained in sub-section (2) of section 159 of the act to the extent it provides that adhyaksha and upadhyaksha shall be elected only by andfrom amongst the elected members of the panchayat is, in my view, consistent with the constitutional provision contained in sub-clause (b) of clause (5) of article 243c of the constitution. therefore, there is no infirmity in the said provision and it is not liable to be declared as unconstitutional.18. in the light of the discussion made above, i make the following:

Judgment:
ORDER

1. The questions that would arise for consideration in all these petitions, are the same and identical. Hence, all these petitions are heard together and disposed of by this common order.

2. The substantial question that would arise for consideration in these petitions is with regard to the constitutional validity of sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Karnataka Panchayat Raj Act, 1993, insofar as they do not permit the non-elected members of Zilla Panchayat to participate and vote in the meeting convened for the purpose of considering the 'no confidence motion' moved against the Adhyaksha and Upadhyaksha of the Panchayat.

3. Petitioners 1 and 2 in Writ Petition No. 7131 of 1999 are the Adhyaksha and Upadhyaksha of Bagalkot Zilla Panchayat, Bagalkot (hereinafter referred to as 'the Panchayat'). They were so elected as Adhyaksha and Upadhyaksha of the Panchayat in the election held on 22nd of April, 1998. The term of office of Adhyaksha and Upadhyaksha is 20 months.

4. The petitioner in Writ Petition No. 6870 of 1999 is an elected member of the Legislative Council from Bijapur Constituency.

5. The petitioner in Writ Petition No. 6557 of 1999 is an elected member of the Legislative Council from Bagalkot District representing local body of the District.

6. The petitioner in Writ Petition No. 6558 of 1999 is a member of the Legislative Assembly from Badami Constituency, which is a part of Bagalkot District.

7. Bagalkot Zilla Panchayat was earlier part of Bijapur Zilla Panchayat. Consequent upon the bifurcation of Bijapur District as two districts viz., Bijapur District and Bagalkot District, Bagalkot Zilla Panchayat came to be constituted. Bagalkot Zilla Panchayat consists of 27 elected Zilla Panchayat members; six Taluk Panchayat Adhyakshas; seven members of the Legislative Assembly; four members of the Legislative Council and one member of the Parliament; and in all, the Panchayat consists of 45 members.

8. By means of an amendment made to the Constitution by means of the Constitution (Seventy-third Amendment) Act, 1992, Part IX consisting of Articles 243 to 243-O came to be incorporated into the Constitution and the same had come into force with effect from 24th of April, 1993. Article 243B of the Constitution provides for the constitution of Panchayats at the village, intermediate and district levels in accordance with Part DC of the Constitution. The State of Karnataka has passed an Act (Act No. 14 of 1993) known as Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as 'the Act'), which came into force with effect from 10th of May, 1993. Section 158 of the Act provides for the establishment of Zilla Panchayat. Section 159 of the Act provides for theconstitution of Zilla Panchayats and the said section, as amended by means of Act No. 29 of 1997, reads as hereunder:

'159. Constitution of Zilla Panchayat.--(1) Every ZillaPanchayat shall consist of,--

(i) the elected members as determined under Section 160;

(ii) the members of the House of People and the members of the State Legislative Assembly representing a part or whole of the district whose constituencies lie within the district;

(iii) the members of the Council of State and the members of the State Legislative Council who are registered as electors within the district; and

(iv) the Adhyakshas of Taluk Panchayats in the district.

(2) The members of the House of People, the State Legislative Assembly, the Council of States and the Legislative Council and the Adhyaksha of Taluk Panchayat referred to in clauses (ii), (iii) and (iv) of sub-section (1) shall be entitled to take part in the proceedings of, and vote at, the meetings of Zilla Panchayat except at a special meeting convened for the purpose of election of Adhyakshas and Upadhyakshas under sub-section (1) of Section 177 or for considering a no confidence motion under sub-section (3) of Section 179.

(3) Notwithstanding anything contained in this section or Sections 160, 161 and 162 but subject to any general or special orders of the Government, where two-thirds of the total number of members of any Zilla Panchayat required to be elected, have been elected, the Zilla Panchayat shall be deemed to have been duly constituted under this Act'.

Section 177 of the Act provides for the election of Adhyaksha, Upadhyaksha and term of their office. Section 179 of the Act provides for the resignation or removal of Adhyaksha and Upadhyaksha of a Panchayat. Sub-section (3) of Section 179 of the Act, which provides for removal of Adhyaksha and Upadhyaksha of the Panchayat by expressing want of confidence in them, reads as follows:

'179. Resignation or removal of Adhyaksha and Upadhyaksha.-

(1).....

(2).....

(3) Every Adhyaksha and every Upadhyaksha of Zilla Panchayat shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the Zilla Panchayat at a meeting specially convened for this purpose:

Provided that no resolution expressing want of confidence in an Adhyaksha or Upadhyaksha shall be made within six months from the date of his election:

Provided further that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by the Zilla Panchayat, a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within six months from the date of the decision of the Zilla Panchayat.....'.

(emphasis supplied)

Section 180 of the Act provides for the meetings of Zilla Panchayat.

9. A resolution was moved expressing want of confidence against Adhyaksha and Upadhyaksha of the Panchayat. The Adhyaksha of the Panchayat having failed to convene a meeting as required, the Chief Executive Officer of the Panchayat, pursuant to the requisition dated 23rd of February, 1999 given by one-third of the members of the Panchayat as provided under sub-section (2)(a) of Section 180 of the Act, issued a notice dated 25th of February, 1999 convening a special meeting of the Panchayat on 6th of March, 1999 to consider the said no confidence motion moved against petitioners 1 and 2. A copy of the said notice dated 25th of February, 1999 issued by the second respondent has been produced as Annexure-B in Writ Petition No. 7131 of 1999.

10. Aggrieved by the said meeting notice, the petitioners have filed these petitions challenging the constitutional validity of sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act insofar as they prohibit the non-elected members of the Panchayat from participating and voting in the meeting convened for the purpose of electing the Adhyaksha and Upadhyaksha of the Panchayat and also for considering the 'no confidence motion' moved against the Adhyaksha and Upadhyaksha. They have also challenged the validity of the meeting notice Annexure-B, dated 25th of February, 1999 and also sought for a direction to the respondents to permit the members of the Legislative Assembly, members of the Legislative Council, members of the Parliament and also Adhyakshas of the Taluk Panchayats, who are members of the Panchayat, to vote in every meeting of the Panchayat.

11. Sri Udaya Holla, learned Counsel appearing for the petitioners in Writ Petition No. 7131 of 1999; Sri C.H. Jadhav, learned Counsel appearing for the petitioners in Writ Petition Nos. 6557 and 6558 of 1999; and Sri Laxminarayan, learned Counsel appearing for the petitioner in Writ Petition No. 6870 of 1999, submitted that sub-section (2) of Section 159 of the Act to the extent it prevents the members of the Panchayat, who fall under clauses (ii), (iii) and (iv) of sub-section (1) of Section 159 of the Act, from participating in the proceedings of, and voting at the special meeting of the Panchayat convened for considering no confidence motion moved against Adhyaksha and Upadhyaksha of the Panchayat under sub-section (3) of Section 179 of the Act, is illegal, unconstitutional and void in law inasmuch as the said provision runs counter to clause (4) of Article 243-C of the Constitution of India. They also submitted that sub-section (3) of Section 179 of the Act to the extent it provides that every Adhyaksha and Upadhyaksha of a Zilla Panchayat shall be deemed to have vacated their office if a resolution expressing want ofconfidence in them is passed by a majority of the total number of elected members of the Panchayat at a meeting specially convened for the said purpose, is unconstitutional and void in law. In other words, it is their submission that the limitation imposed under sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act limiting the rights to only the elected members of the Panchayat who fall under clause (i) of sub-section (1) of Section 159 of the Act to participate and vote in the meeting convened for the purpose of considering the no confidence motion moved against Adhyaksha and Upadhyaksha of the Panchayat, is unconstitutional. In support of this submission, they drew my attention to Article 243C of the Constitution and more particularly, clause (4) thereof. It is their submission that since clause (4) of Article 243C of the Constitution mandates that every Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayat, sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act to the extent they take away the rights of non-elected members of the Panchayat from participating and voting in the meeting convened for the purpose of considering the no confidence motion against the Adhyaksha and Upadhyaksha of the Panchayat, are unconstitutional as the said provisions directly contravene clause (4) of Article 243C of the Constitution. They pointed out that in case of conflict between a provision in the statute and the Constitution, the constitutional provision being paramount, must prevail over the statute and the provision in the statute to the extent of conflict and inconsistency, must be declared as void. In support of this plea, they also relied upon a decision of the Allahabad High Court in the case of Amin and Another v State.

12. However, Sri Nagarajappa, learned Additional Government Advocate, strongly repelling the argument of learned Counsel for the petitioners, submitted that there is no conflict between clause (4) of Article 243C of the Constitution and sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act as sought to be made out by the learned Counsel appearing for the petitioners. He pointed out that clause (4) of Article 243C must be read along with clause (1) of Article 243C of the Constitution; and if it is so read, it would be clear that what is provided under clause (4) of Article 243C of the Constitution is the outer limits within which a legislation could be made by the State Legislature and, therefore, it was within the legislative competency of the State legislature to make a law providing for the procedure or provide for the rights to such of the members of the Panchayat to elect Adhyaksha or Upadhyaksha of the Panchayat or to consider the motion moved for removal of Adhyaksha or Upadhyaksha by expressing no confidence. In this connection, he referred to me Entry 5 of List II of the Seventh Schedule to the Constitution. In other words, it is his submission that when the Legislature is fully competent to make a legislation, the impugned provisions cannot be nullified on the ground that the said provisions are inconflict with clause (4) of Article 243C of the Constitution. According to him, since the legislature has the legislative competency to pass the impugned provisions, the provisions contained in clause (4) of Article 243C of the Constitution and the impugned provisions must be so understood and read to uphold the constitutional validity of the impugned provisions and not to nullify it. He also relied upon the decision of this Court in the case of B. Javarayagouda v State of Karnataka and that of the Supreme Court in the cases reported in State of Andhra Pradesh and Others v McDowell and Company and Others, Chaturbhai M. Patel v Union of India and Others, State of Karnataka and Another v Ran-ganatha Reddy and Another, Sri Nagarajappa also submitted that the rights to participate in the meeting convened either to elect the Adhyaksha or Upadhyaksha of the Panchayat or to consider the motion of no confidence moved against them or to vote in the said proceedings, is not a fundamental right. He also submitted that there is presumption in favour of the constitutional validity of a provision in the statute; and in the instant case, the petitioners having failed to discharge the burden placed on them under law, are not entitled for the relief sought for by them in these petitions.

13. Sri Ravindra Patil, learned Counsel appearing for the contesting respondents, reiterated the submissions of Sri Nagarajappa with equal vehemence and clarity.

14. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, as noticed by me earlier, the only question that would fall for my consideration is whether sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act to the extent they are assailed, are unconstitutional and void in law?

15. It is well-settled that if a provision in a statute runs counter to the constitutional provision, the provision in the statute to the extent of conflict or inconsistency requires tc be declared as void and unenforceable on the ground that it is unconstitutional. The source of power to legislate on a subject is quite distinct and different from the validity of law made when it has to be tested with the parameters laid down under the Constitution. No doubt, as pointed out by Sri Nagarajappa, in view of Entry 5 of Last II of the Seventh Schedule to the Constitution, the State Legislature has the legislative competency to pass the Panchayat Raj Act and also pass the impugned provisions. But, if the provisions impugned come in conflict or run counter to the mandate of clause (4) of Article 243C of the Constitution, as contended by learned Counsel appearing for the petitioners, merely because the State Legislature has the legislative competency to pass the impugned provision, it does not make the said provision constitutionally valid. Though the State Legislature has the legislative competency to pass the impugned provisions, still if the said provisions run counter to the provisions contained in clause (4) of Article 243C of the Constitution, in my considered view, the said provisions to the extent of inconsistency and conflict require to be declared as unconstitutional and null and void. Therefore, the real question that would arise for consideration is whether the provisions impugned run counter to clause (4) of Article 243C of the Constitution of India as sought to be made out by learned Counsel appearing for the petitioners?

16. Clause (4) of Article 243C of the Constitution reads as hereun-der:

'243-C. Composition of Panchayats.-

.....

(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats'.

A reading of clause (4), extracted above, does not give any scope for any doubt that all the members of the Panchayat, whether or not chosen by direct election from territorial constituencies in the Panchayat area, shall have the right to vote in the meetings of the Panchayat. Clause (1) of Article 243C of the Constitution empowers the State Legislature subject to Part IX of the Constitution, to make a law providing for composition of the Panchayats. Clause (2) of Article 243C of the Constitution provides that all seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area. Further, clause (3) of Article 243C of the Constitution empowers the State Legislature by law to provide for the representation (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat; and (d) of the members of the Council of States and the members of the Legislative Council of the State. Therefore, from the reading of clauses (1) and (3) of Article 243C of the Constitution, it is clear that the State Legislature is conferred with the power to make law providing for constitution of the Panchayats of various categories who fall under sub-clauses (a) to (d) of clause (3) of Article 243C of the Constitution of India. Consistent with the said constitutional provision, the State Legislature has constituted Panchayats in the State under sub-section (1) of Section 159 of the Act. Clause (4) of Article 243C of the Constitution, as observed by me earlier, in unequivocal terms, states that the Chairperson of a Panchayat and other members of a Panchayat, whether or not chosen by direct election from territorial constituencies in the Panchayat area, shall have the right to vote in the meetings of thePanchayat. Clause (d) of Article 243 of the Constitution defines 'Panchayat' to mean an institution (by whatever name called) of self-government constituted under Article 243B, for the rural areas. Therefore, I have no doubt in my mind that all the members of the Panchayat who constitute a Panchayat under clauses (i) to (iv) of sub-section (1) of Section 159 of the Act shall have the right to vote in all the meetings of the Panchayat, however, subject to an exception made under clause (5) of Article 243C of the Constitution. Clause (5) of Article 243C of the Constitution reads as follows:

'(5) The Chairperson of-

(a) a Panchayat at the village level shall be elected in such manner as the legislature of a State may, by law, provide, and

(b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.

From sub-clause (a) of clause (5) of Article 243C of the Constitution, it is clear that the State Legislature is conferred with a power to make a law providing for the procedure to elect the Chairperson of a Panchayat at the village level. However, sub-clause (b) of clause (5) thereof specifically states that the Chairperson of a Panchayat, at the intermediate level or district level, shall be elected by and from amongst the elected members thereof. Therefore, the Constitution-makers were fully conscious of the rights of the members of the Panchayat to vote in a meeting of the Panchayat convened for the purpose of election of the Chairperson of a Panchayat at the intermediate level or district level and the meetings of the Panchayat convened for other purposes. Therefore, when clause (4) of Article 243C of the Constitution mandates that all the members of the Panchayat, whether or not chosen by direct election from territorial constituencies in the Panchayat area, shall have the right to vote in the meetings of the Panchayat, in my view, it is not permissible for the State Legislature to take away the constitutional rights guaranteed to the members of the Panchayat who fall under clauses (ii) to (iv) of sub-section (1) of Section 159 of the Act to participate in the meetings and vote at the meetings convened for the purpose of considering the no confidence motion moved against the Adhyaksha or Upadhyaksha of the Panchayat. Further, when the provisions made under Part IX of the Constitution provide for the constitution of Panchayats, the terms of the members of the Panchayat, the reservations to be made in the Panchayats, any law made, which runs counter to the said constitutional rights, requires to be declared as unconstitutional and void in law. The Division Bench decision of this Court in the case of Javarayagouda, supra, strongly relied upon by Sri Nagarajappa, in my view, has absolutely no bearing to the facts of the present case. In the said decision, the Division Bench of this Court has upheld the constitutional validity of sub-section (3) of Section 138 of the Act curtailing the term of the Adhyaksha and Upadhyaksha of the Panchayat on the ground that neither Article 243E nor any other Article in Part IX of the Constitution, refers to the terms of the Adhyaksha and Upadhyaksha of a Panchayat and, therefore, sub-section (2) of Section 138 is not uncon-stitutional. This is clear from the observations made in paragraphs 10 and 13 of the judgment, which read as hereunder:

'10. Neither Article 243E nor any other Article in Part IX of the Constitution refers to the term of the Adhyaksha or Upadhyaksha of the Panchayat constituted in accordance with law enacted in pursuance of Entry 5, List II of the VII Schedule of the Constitution.

13. ..... The insistence upon constitutional provision even withrespect to fixing the term of office of the Chairpersons would have disastrous results. The Union Parliament never intended to fix the term of office of the Adhyaksha and Upadhyaksha and opted to restrict the term of the Panchayat as a body corporate only. None of the petitioners has been deprived of any right accruing to him under Article 243E of the Constitution, as the term of office to which he was elected as Member of the Panchayat has not been restricted or taken away. It cannot be said that while incorporating Chapter IX in the Constitution, it was intended to make the office of the Adhyaksha and Upadhyaksha coterminous with the office of the Panchayat. We are, therefore, of the opinion, that the State Legislature had the power and was competent to enact the Amendment Act which has been impugned in these petitions'.

Therefore, sub-section (2) of Section 159 and sub-section (3) of Section 179 of the Act to the extent they take away the rights of the members of the Panchayat who fall under clauses (ii) to (iv) of sub-section (1) of Section 159 of the Act, to participate and vote in the meeting convened for the purpose of considering the 'no confidence' motion moved against the Adhyaksha or Upadhyaksha of the Panchayat, are required to be declared as illegal, void and unconstitutional. Consequently, the meeting notice dated 25th of February, 1999 issued by the Chief Executive Officer of the Panchayat convening the meeting of only the elected members of the Panchayat to consider the no confidence motion moved against the Adhyaksha and Upadhyaksha of the Panchayat, is also required to be quashed as illegal and void in law.

17. Though the petitioners have prayed that sub-section (2) of Section 159 of the Act, insofar as it prohibits the non-elected members of the Panchayat from voting in the election to the Office of Adhyaksha and Upadhyaksha of the Panchayat, also should to be declared as void and unconstitutional, however, at the hearing of the petition, no argument was advanced by the learned Counsel for the petitioners in that regard. In my view, rightly the said contention is not pursued because sub-clause (b) of clause (5) of Article 243C of the Constitution provides that the Chairperson of a Panchayat, at the intermediate level or district level, shall be elected by and from amongst, the elected members of the Panchayat. Therefore, the mandate of clause (5)(b) of Article 243C of the Constitution is that the Chairperson of the Panchayat, at the intermediate level or district level, should be elected by, and from amongst the elected members of the Panchayat only. Therefore, the provision contained in sub-section (2) of Section 159 of the Act to the extent it provides that Adhyaksha and Upadhyaksha shall be elected only by andfrom amongst the elected members of the Panchayat is, in my view, consistent with the constitutional provision contained in sub-clause (b) of clause (5) of Article 243C of the Constitution. Therefore, there is no infirmity in the said provision and it is not liable to be declared as unconstitutional.

18. In the light of the discussion made above, I make the following: