Sri P.M. Ratna Sabhapathi Rao and Others vs The State of Madras and Others

Chandra Reddi, J.—This petition relates to the Municipal Council, Guntur and is taken out by twelve persons stated to be the members of

that Municipality for calling for the records and for quashing the notification issued by the Government in G. O. No. 1298, Local Administration

dated 1-7-1952. In 1949 the strength of the Municipal Council, Guntur, was fixed at 32 and as the census of 1951 disclosed an increase in the

population, the strength of the Council had to be increased to 36 in view of the provisions of Section 7, District Municipalities Act. This

necessitated redivision of the wards into 32. u/s 43, District Municipalities Act, the Government have to consult the Municipalities concerned

before dividing the municipality into wards and doing other things mentioned in that section. Accordingly the Government called for proposals from

the Municipality with regard to the division of it into wards and also the wards in which seats if any should be reserved under Subsection 3 of

Section 7 of the Act. On receipt of this communication the Municipal Council passed a resolution on 1-11-1951 appointing a Sub-committee of

eight of whom two of the present petitioners were members for formulating proposals to be submitted to the Government regarding division into

wards. In order to consider the recommendations, of the Sub-committee, a meeting of the Council was called for on 7-3-1952 and the agenda

specifically included the consideration of the proposals of the Sub-committee with regard to division of wards. But as there was no quorum, the

meeting had to be adjourned. By a notice dated 13-3-1952 the meeting was fixed for 27-3-1952. On that day a point of order was raised that the

meeting was not yalidly summoned as the notice for the meeting and the agenda were not signed by the Vice-Chairman, the basis of the objection

being that the Vice-Chairman left the town on the 16th evening and so he could not have signed either the notice or the agenda. But this point of

order was ruled out by the Vice-Chairman who was then presiding on the ground that, the notice and the agenda were signed on the 13th and

there was absolutely no force in the point of order. Thereafter the proposals of the Sub-committee were considered and were accepted with slight

modification and they were communicated to the Government. On 30-5-1952, some members of the Municipal Council sent a requisition for

summoning a special meeting for the purpose of reconsidering the resolution of 27-3-1952. Accordingly the special meeting was summoned and at

that meeting it was resolved that the resolution of 27-3-1952 should be reconsidered. The meeting was adjourned to 20-6-1952 and on account

of some in convenience to some of the members, the meeting could not be held on the 20th and it was postponed to 20 (23?)-6-1952. On 23-6-

1952 at about 11 o''clock when the Council was in meeting, a notice was served on the Vice-Chairman by an advocate informing him that a suit

was filed by one of the municipal councillors for an injunction restraining the Municipal Council from reconsidering the resolution passed on 27-3-

1952. Immediately the Vice-Chairman read out the notice received by him and adjourned the meeting entering in the minute book that the matter

of reconsideration of the resolution was ''sub judice'' and left the meeting. It is alleged in the affidavit in support of the petition for the issue of writ

of ''certiorari'' that 17 members of the Council stayed behind, elected one of them as the president of the meeting and passed a resolution making

certain proposals to be forwarded to the Government for the division of the wards. This seems to have been communicated to the Government and

it is stated that these proposals were before the Government before the notification now sought to be quashed was issued.

The main grounds of attack against the notification in question are that it is based on the proposals of the municipality made on 27-3-1952 which

are inequitable, and unjust and is therefore ''ultra vires'' the powers of the Government, that it contravenes the provisions of Section 43 and that the

Government acted in a very highhanded and arbitrary manner and were actuated by mala fides in not issuing a notification in accordance with the

proposals, made on 23-6-1952.

The chief question therefore for consideration is whether the Government disregarded the provisions of Section 43, District Municipalities Act.

Section 43 of that Act runs thus:

43(1) : For the purpose of election of councillors to a Municipal Council, the Provincial Government after consulting the Municipal Council may,

by notification,

(a) divide the Municipality into wards,

(b) determine the wards in which the seats, if any, reserved under Sub-section (3) of Section 7 shall be set apart, and

(c) declare for whom such seats are re served.

(2) ...............

We are not concerned with the other provisions of the section. It is seen that u/s 43 all that the Government are required to do before dividing the

municipality into wards is to consult the municipality concerned. Before issuing a notification regarding the division, the Government should have the

advice of the Municipal Council that is the views of the concerned Municipality with regard to that matter. They are not bound to adopt all the

proposals submitted to them in that behalf. All that they have to do before arriving at a decision with regard to division into wards is to take the

recommendations of the municipality into consideration they being the final authority and the responsibility being entirely their own. In this case the

notification issued on 1-7-1952 is mainly based on the proposals made by the municipality on 27-3-1952.

It is argued by Mr. Subramaniam, vehemently that when fresh proposal were submitted to the Government in suspension or modification of the

earlier proposals me Government were bound to act only on the subsequent proposals and could not take into consideration the earlier proposals.

I am afraid I cannot give effect to this argument. There is no provision of law in the Act to compel the Government to give effect to the

recommendations made by the Municipality. They are not bound to accept all the recommendations of the Municipality in regard to the division. All

that they have to do is to consider the proposals before arriving at a decision. Whatever may be the position if the Government were to act in

accordance with the wishes or the resolution of the Council and the resolution binding on the Government it is different when the Government have

only to consult the municipality before issuing the notification, u/s 43 the capacity of the Council is only advisory and it cannot insist on the

Government accepting the later advice tendered by it in preference to the one that was given earlier. It is for the Government to decide whether

they will accept the advice given first or that given subsequently. If the contention put forward on behalf of the petitioners is to be accepted, the

position comes to this. If after passing the resolution on 23rd June the municipality again had changed its mind and submitted fresh proposals, the

Government would have to give effect to the latest proposals and not to the intermediate proposals. I do not think such a position was ever

contemplated by the Legislature when it, enacted Section 43, District Municipalities Act. It is not out of place to note in this case that the

Municipality met again on 18-8-1952 and passed a resolution submitting proposals which are said to be completely at variance with those

submitted on 23-6-1952. If effect is given to the argument of Mr. Subramaniam, the Government can never act promptly and expeditiously.

In support of his contention that there was no consultation by the Government as required u/s 43 of the Act. Mr. Subramaniam relied on a

decision of Subba Rao J. in -- R. Pushpam and Another Vs. The State of Madras and Another, . I do not think that the decision has any bearing

on the question for consideration. There the State Government made proposals to the Municipal Council, Arupukottai to reserve two seats for

women in wards Nos. 5 and 12. The Municipal Council expressed the opinion that the reservation for women might be made in wards Nos. 5 and

The Government instead of making reservation as per the original proposal or accepting Municipal Council''s recommendation made the

reservation for women in wards Nos. 2 and 12. While holding that there was consultation in regard to ward No. 12 having regard to the fact that

the original proposal of the Government included ward No 12 the learned Judge took the view that there was no consultation In respect of ward

No. 2. In the opinion of the learned Judge It could not be said that there had been any consultation or collaboration between the Municipal Council

and the Government as regards ward No. 2.

As I have already pointed out, the principle underlying the case has no application to this case. I think that once the Government had called for

proposals and the proposals were submitted it is open to the Government to accept those proposals in preference to those subsequently made.

When this is done, it cannot be said that there is no sufficient compliance with the provisions of Section 48, District Municipalities Act. In these

circumstances there is absolutely no substance in the contention that the Government disregarded relevant provisions of the Act in issuing the

notification on 1-7-1952.

I must also observe that there is absolutely no foundation for the allegations of mala fides and high-handedness made against the Government.

The Government acted on the advice tendered by the Municipality and it cannot be said that the action ''of the Government was mala fide, high-

handed or arbitrary. In this connection it cannot be overlooked that the Sub-Committee whose recommendations formed mainly the basis of the

notification included two of the petitioners. Further in the counter filed by the Secretary to the Government, Local Administration Department it is

stated that the Government considered that the wards as proposed by the Council on 23rd June were equitable and approved those proposals. I

do not see any reason why I should not accept this statement. Merely because the voters'' lists of different wards are not exactly equal, it cannot be

premised that there is want of bona fides on the part of the Government. It is regrettable that mala fides should be attributed to the Government

without the slightest foundation.

It was argued by the Government Pleader that even assuming that there was non-observance of the provisions of Section 43, District

Municipalities Act, the petitioners have no ''locus standi'' to maintain this application. It is submitted that the petitioners cannot be said to be

aggrieved or affected by the failure of the Government to comply with the provisions of Section 43, District Municipalities Act even assuming that

there was such non- compliance. There seems to be considerable force in this contention of the Government Pleader. It cannot be said that the

rights of the petitioners are involved in the failure of the Government to comply sufficiently with the requirements of Section 43 of the Act. They

have no direct interest in the matter. It is only the Municipality that can complain of it. The petitioners do not have any personal interest in the

matter.

In this connection, I may refer to a decision of a Bench of this Court consisting of the ''Chief Justice and Venkatarama Aiyar J. in -- In Re: P.

Ramamoorthi, . The principle laid down there is that the right which is the foundation of a petition under Article 226 of the Constitution of a

corresponding provision is a personal and individual one and it is the person whose right has been affected by any particular order that can invoke

the jurisdiction of this Court under Article 226 of the Constitution. The learned Judges in that case referred to a decision of the Supreme Court in -

- Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, .

In the last mentioned case the validity of the Sholapur Spinning and Weaving Co. (Emergency Provisions) Act passed by Parliament was

impugned by a holder of a share in the company by moving for a writ of ''mandamus'' and certain other reliefs under Article 32 of the Constitution.

The Supreme Court took the view that an individual share-holder was not entitled to challenge the validity of the enactment which affects the

fundamental rights of the company, except to the extent that it constitutes an infraction of his rights. The observations of Fazl Ali J. at p. 44 of the

report are pertinent:

It has been held in a number of cases In the United States of America that no one except those whose rights are directly affected by a law can

raise the question of the Constitutionality of that law.

I may also extract the observations of Das J. in -- ''In re Banwarilal Roy'', 48 Cal WN 767 (D) in this connection :

It is a very well-known form of process and an effective weapoh in the judicial armoury for the protection of the rights and franchise alike of the

Crown and the subjects.

In this connection the remarks of Wright J. in -- ''The Queen v. Lewisham Union'', (1897) 1 QB 498 (E) are apposite:

This Court would be far exceeding its proper functions if it were to assume jurisdiction to enforce the performance by public bodies of all their

statutory duties without requiring clear evidence that the person who sought its interference had a legal right to insist upon such performance.

I therefore think that the petitioners unless they can allege that their personal rights are involved in the notification impugned they cannot maintain

this application. It is not alleged how the alleged unequal division has affected the petitioners personally. They do not state that this has in any way

resulted in the diminution of the chances of the three petitioners who are said to be seeking election to be returned to the Municipal Council. All

that is alleged in the affidavit in support of the petition is that the redistribution of wards is not in the interest of the public.

Mr. Subramaniam cited some cases which have laid down that although a subject not having a personal right involved in the matter may not be

entitled ''ex debito justitiae'' to the issue of a writ, still it is within the discretion of the Court to issue a writ if it is established that the orders

impugned are contrary to the provisions of an enactment or principles of natural justice. I do not think these decisions carry the petitioners very far

assuming the dictum laid down in those rulings is correct and also that it has a bearing on the writs to be issued under Article 226 of the

Constitution.

What is alleged in the present petition is that the wards are not so divided as to ensure the return of members of minority communities to the

Municipal Council and that the number of voters in some wards is larger than those of other wards. It is nowhere laid down that the wards in a

Municipality are to be so divided as to make it easy for the members of a particular community to be returned to the Municipal Council. Nor can it

be premised that there is a violation of the principles of natural justice if the wards are not so manipulated as to ensure the success of the

representatives of a particular community in the Municipal election. It is not out of place to mention here that it is complained in the affidavit that

one of the wards was so redistributed as to make it easy for a Brahmin candidate to be returned to the Council. There is not much force in the

other complaint also. Neither under the provisions of the District Municipalities Act nor under the Rules framed for the holding of elections is it

incumbent on the authorities concerned to divide the wards in such a manner as would ensure the equality of voting strength of the wards.

Even assuming that there is any force in the contention based on the disparity of votes in the matter of redistribution of wards that matter cannot

be brought up for writ of ''certiorari''. There are some decisions of the United States Supreme Court which throw some light on this issue. In --

''Colegrove v. Green'', (1946) 328 US 549: The United States Supreme Court Reports, 90 Law Ed. 1432 (F) there was a suit in the District

Court of Illinois to have a division of Illinois State into congressional districts declared invalid by reason of inequalities in the population of the

respective districts. The suit was dismissed by the District Court. While dismissing the appeal preferred against the dismissal of the suit, Frankfurter

J. who delivered the judgment of the Court remarked thus:

We are of opinion that the petitioners ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power

which cannot be met by verbal fencing about ''jurisdiction''. It must be resolved by the considerations on the basis of which this Court, from time to

time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed

this issue to be of a peculiarly political nature and therefore not meet for judicial determination.

It is also stated in the judgment that in effect it was an appeal to the Federal Courts to re construct the electoral process of Illinois in order that it

may adequately be represented in the councils of the nation. Another passage from the same judgment may also be quoted as It is relevant in this

context:

Nothing is clearer than that this controversy concerns matters that bring Courts into im mediate and active relations with party con tests. From the

determination of such issues this Court has traditionally held aloof. It is hostile to a democratic system to invoke the judiciary in the politics of the

people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law.

I adopt the reasoning of the learned Judges in this case.

The same view is embodied in -- ''South v. Peters'', (1950) 339 uS 276, see United States Supreme Court Reports, 94 Law Ed. 834 (G).

The residents of the Northern Districts of Georgia filed a suit- in the United States District Court for the Northern District attacking statute of

Georgia which provided that county unit votes should determine the outcome of primary election, as offending against Fourteenth and Seventeenth

Amendments. Under 1953 Mad./65 & 66 the impugned statute each county was given a number of unit votes ranging from six for the most

populous counties to two for most of the other counties and the candidates who received the highest popular vote in the county was to be awarded

the appropriate number of unit votes. The ground of attack against the statute was that the votes of the residents of the most populous counties had

on the average but one-tenth the weight of those in other counties and this amounted to an unconstitutional discrimination against the residents. The

suit was dismissed by the Court below. On appeal this was affirmed by the Supreme Court by a Majority of Judges holding that Federal Courts

consistently refused to exercise their equity powers in cases posing political issues arising from a State''s geographical distribution of electoral

strength amongst its political Sub-divisions.

In my view, these rulings embody the sound principles and I express my respectful accord with them. These decisions indicate that questions

relating to delimitation of Constituencies are not justiciable, they being matters purely within the ambit of the executive power. It is for the

Government to arrange the distribution of wards, taking into consideration various factors, such as compactness of area, the population and the

electoral strength etc. There is bound to be disparity between one ward and another in the matter of voting strength as due regard has to be had to

various other factors, The voting strength is not the sole criterion in these matters. As pointed out by Subba Rao J. in W. P. No. 568 of 1952

(Mad) (H) in dividing the wards the Government have to take into consideration the administrative convenience, the factor of population, the

housing accommodation, the size of the divisions, the geographical position of the streets and other similar factors. It follows on this discussion that

the redistribution of wards is not a matter that can be brought up for a writ of ''certiorari'' before this Court. Any interference by Courts with

electoral process is not warranted under Article 226 of the Constitution.

I have to state here that just at the time of the close of his reply Mr. Subramaniam wanted to file a petition purported to be one on behalf of the

Municipality to come on record. I declined to grant him his request for the reason that it was too late. Further the Chairman cannot come on record

without the sanction of the Municipality. So the request of Mr. Subramaniam for permitting him to file an application on behalf of the Municipality

to come on record as a party cannot be granted.

For the foregoing reasons I hold that there are absolutely no grounds for the issue of writ of ''certiprari'' and for quashing the notification

contained in G. O. No. 1298 Local Ad ministration dated 1-7-1952. The petition is accordingly dismissed with costs which I fix at Rs./200.