Decided on October 15,1952

Sri P.M. Ratna Sabhapathi Rao And Ors. Appellant
The State Of Madras Represented By Secretary, Local Administration Department And Ors. Respondents


Chandra Reddi, J. - (1.) 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 re -division of the wards into 32. Under Section 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 validly 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.
(2.) 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 under Section 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, Under Section 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.
(3.) IN support of his contention that there was no consultation by the Government as required under Section 43 of the Act. Mr. Subramaniam relied on a decision of Subba Rao J. in - - 'R. Pushpam v. : AIR1953Mad392 (A). 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 7. 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.;

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