The impugned Act was held to be ultra vires the Constitution as it infringed upon the constitutional right of elected Members of the Council to hold office for a term of five years, as prescribed by paragraph 2(6-A) of the Sixth Schedule.

T. Vaiphei, J.

1. The constitutional validity of the provisions of Khasi Hills Autonomous District Council (Prevention of Defection) Act, 2003 ("the Act" for short) and the rules made thereunder, namely, Khasi Hills Autonomous District Council (Prevention of Defection) Rules, 2005. ("the Rules") whereunder the writ petitioner has been disqualified as Member of the Khasi Hills Autonomous District Council ("the District Council" for short), is called into question in this writ petition.

2. The material facts of the case are not in dispute. The petitioner was elected as Member of the District Council form No. 13, Laitkroh District Council Constituency in the election held in the year 2004 for a term of five years. After holding the office of the Executive Member, Law and Elaka Administration Department in the District Council for sometime, he was ultimately appointed as the Chief Executive Member till he was removed on 5.2.2008 by a No-Confidence Motion moved against him. After his removal, three Members of the District Council, namely, Mr. M. Nongrem, Mr. H.L. Massar and Mr. Lambor Malngiang, separately submitted and moved the Chairman of the District Council under Section 3 of the Act for disqualifying the petitioner as Member of the District Council on the ground that he acted against the whip issued by the Congress party for his removal as leader of the Congress Parliamentary Party and for electing one C.B. Syiem as the leader in his place. Two other complaints were also filed by the respondent No. 5,6,7,8 and 9 jointly alleging that the petitioner, having violated the whip of his party to resign and having contested the Meghalaya Legislative Assembly election as an Independent candidate, has incurred disqualification as Member of the Council and contending that he was liable to be proceeded with in accordance with Section 3 of the Act. Many contentions have been made by the petitioner before the Chairman of the Council in contesting those complaints, which were reiterated before us, but they are not really necessary for us to deal with those contentions as the present controversy can be resolved in a narrow compass. It appears that those contentions did not find favour with the Chairman whereupon he, by the order dated 18.4.2008, declared that the petitioner stood disqualified as Member of the District Council under the provisions of the Act, and has ceased to be so with immediate effect.

3. It is contended by Mr. S.S. Dey, the learned Counsel for the petitioner that the entire action of the Chairman in passing the impugned order disqualifying him from the membership of the Council is ultra vires the provisions of paragraph 2 (6-A) of the Sixth Schedule to the Constitution, which cannot be made subservient to the Act passed by the Council and that the Council has no legislative competence to enact such a legislation. According to the learned Counsel, the powers of the Council to make laws are confined only to the legislative powers conferred under paragraphs 3, 8 and 10 of the Sixth Schedule, and the subjects and fields of its legislative domain, being specific as well as exhaustive, cannot be stretched, added or altered by the Council on its own. The power of the Parliament to legislate the Tenth Schedule to the Constitution under Articles 102(2) and 191(2) of the Constitution for disqualifying members of Parliament and members of legislative assembly respectively can, in no way, be equated with the limited law making power of the Council, which undoubtedly has no plenary power of legislation. The Act is the creature of the Sixth Schedule to the Constitution, and the creature cannot destroy or change its creator. It is thus contended by the learned Counsel for petitioner that the entire proceedings before the Chairman culminating in the disqualification of the petitioner as Member of the Council in exercise of his purported power under Section 3 of the impugned the Act, which is ex facie ultra vires the provisions of t