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4. Learned Senior counsel for the petitioner submitted that the petitioners who are nominated councilors of Malur Town Municipal Council have assailed the validity of section 11(1)(b) of the Karnataka Municipalities Act, 1964 as well as the Constitutional validity of proviso to Article 243-R(2)(a) of the Constitution of India on the ground that same is violative of Article 14 and is contrary to basic structure to constitution of India. It is urged that alternatively the petitioners have sought the relief of reading down the proviso to Section 11(1)(b) of the Karnataka Municipalities Act so as to not apply to the elections for the post of President and Vice President of Municipal Council held under Section 42(2) of the Karnataka Municipalities Act. It is urged that the provisions of Section 11(1)(b) of the Act do not apply to meeting held to elect the President and therefore, the petitioners have right to vote in the aforesaid election.

8. It is contended that there is no pleading in the writ petition as to what is the basic structure of the Constitution and how Article 243-R(2)(a) constitutes the basic structure of the Constitution. It is further contended that Article 243-ZF constitutes an embargo that voting rights cannot be given to nominated members. It is also urged that Section 11(1)(b) of the Act is in consonance with Article 243-R(2)(a) of the Constitution of India. It is urged that the right to vote and contest an election are not fundamental right but at best are constitutional rights. It is also urged that there is a presumption in favor of constitutionality of the provision and the petitioner have miserably failed to rebut the aforesaid presumption. It is contended that nominated members have no right to vote and the meeting recognized by the Act is either the special general meeting or an ordinary meeting and in a meeting of the Council, the President of the Council is elected. Our attention has also been invited to the Karnataka Municipalities (President and Vice-President) Election Rules, 1965 (hereinafter referred to as 'the Rules' for short). In support of the aforesaid submissions, reliance has been placed on KALABHARATI ADVERTISING VS HEMANT VIMALNATH NARICHANIA & ORS (2010) 9 SCC 437, CHARANJIT LAL CHOWDHURI VS THE UNION OF INDIA AND OTHERS AIR 1951 SC 41, JYOTI PERSHAD VS THE ADMINISTRATOR FOR THE UNION TERRITORY OF DELHI AND ORS AIR 1961 SC 1602, JULLUNDUR RUBBER GOODS MANUFACTURERS'ASSOCIATION VS. THE UNION OF INDIA AND ORS. AIR 1970 SC 1589, RAJBALA VS STATE OF HARYANA 2016 (2) SCC 445, PUCL AND ANR VS UNION OF INDIA 2004 (2) SCC 476, GOVERNMENT OF AP VS P LAXMI DEVI (2008) 4 SCC 720, RAMESH MEHTA VS SANWAL CHAND SINGHVI AND OTHERS (2004) 5 SCC 409, SAVITRI VS THE STATE OF KARNATAKA ILR 2003 KAR 4653, M NAGRAJ AND OTHERS VS UNION OF INDIA AND OTHERS (2006) 8 SCC 212, IR COELHO VS STATE OF TN (2007) 2 SCC 1.

10. Learned Central Government Senior Panel Counsel submitted that petitioners have not pleaded in the writ petition that either the Parliament lacks power to amend the Constitution or Article 243R (2) violates the Fundamental Right guaranteed in Part II of the Constitution or is violative of basic structure of the Constitution of India. It is therefore submitted that the prayer for declaring proviso to Article 243R (2) as ultra vires cannot be granted. It is also submitted that nominated members of the Council fall in different class and therefore, cannot claim equality with the elected members of the Council. In support of aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in OM NARAIN AGARWAL VS NAGAR PALIKA, SHAHAJANPUR AND OTHERS AIR 1993 SC 1440 AND ANKUL CHANDRA PRADHAN VS UNION OF INDIA AIR 1997 SC 2814.

(a) that it violates Article 14 of the Constitution of India, fails.

21. It is pertinent to note that there is no pleading in the writ petition as to what is the basic structure of the Constitution and how Article 243R (2) (a) violates the basic structure of the Constitution. In the absence of any pleading on the aforesaid aspect of the matter, the challenge to Article 243R (2) (a) on the ground that it violates the basic structure of the Constitution deserves to be repelled in limine. Even otherwise, the right to vote is not a fundamental right and therefore, Article 243R (2) (a) which provides that nominated members shall not have right to vote in the meeting of the Council does not violate the basic structure of the Constitution. Article 243R (2) (a) does not suffer from any infirmity, therefore, the question of reading down the same does not arise.