(Prayer: Petition (disposed of on 6-10-1952) praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to issue a writ of certiorari calling for the records relating to G.O.Ms. No. 1544, Local Administration Department dated 29-7-1952 from the Secretary, to Government, Local Administration Department, Fort St. George, Madras, regarding the reservation of seats for women for wards 2 and 12 of the Aruppukottai Municipality.)

This is an application under Art. 226 of the Constitution of India for issuing a writ of certiorari to call for the records and quash the order dated 29th July 1952 of the 1st respondent, the State of Madras. The first petitioner is the Secretary of the Progressive Womens Association, Aruppukottai; the second petitioner is a Municipal Councillor of the Aruppukottai Municipality. The elections to the said Council are now in progress. Under the programme of elections issued by the second respondent, Commissioner of the Municipality, the last date to file nominations is the 6th and 8th September 1952 and the date of this polling is fixed on the 6th October 195

2. The Municipality 19 divided into 24 wards with 38 councillors; one reserved seat for women 19 allotted to ward No. 2 and another to ward No. 1

2. The said allotment was made by the order of the Government dated 29th July 195

2. The petitioners seek to get that order quashed for the reasons, inter alia that it is vitiated by mala fides on the part of the Government and also on the ground that the Government did not comply with the provisions of the District Municipalities Act in issuing the said order.

The contention of the learned Counsel for the petitioners that the Government did not comply with the provisions of S. 43 of the District Municipalities Act may be taken up first. S. 43 reads:

For the purpose of election of Councillors to a Municipal Council, the Local 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 in Sub-sec (3) of S. 7 shaU set apart;

(c) declare for whom such seats are reserved.

Under S. 7 (3) the Local Government may in their discretion by notification reserve seats for women and determine the number of such seats. The Government accordingly determined to give two seats for Women and allotted the said reserved Beats to wards 2 and 1

2. Under S. 43 such allotment of the reserved seats can only be made after consulting the Municipal Council. The statutory condition of consulting was conceived in public interests and expressed in clear terms. It is therefore the duty of this Court to ensure that there is a full and fair compliance with the statutory condition. The question therefore is whether the Government consulted the Municipal Council before determining the wards in which the said seats were set apart. This turns upon the construction of the words after consulting in the section. The word consult is so familiar that it often eludes the grasp of easy and exact definition. In the Law Lexicon by P. Ramanatha Aiyar it is stated as follows:

Consultations always require two persons at least; deliberations may be carried on either with a mans self or with numbers; an individual may consult with one or many assemblies commonly deliberate; advice and information are given and received in consultations; doubts, difficulties, and objections are started and removed in deliberations. Those who have to co-operate must frequently consult together, those who have serious measures to decide upon must coolly deliberate.

The word consult was subject of a judicial scrutiny in Fletcher v. Minister of Town Planning (1947) 2 A.E.L.R. 496). The question arose in connection with an application taken out for quashing the order made by the Minister for Town and County Planning. The Minister designated an area of land as the site of a proposed new town. It was contended that the requirements of the New Towns Act, 1946 had not been complied with in relation to the making of the order, in that there was no consultation within the meaning of S. 1(1) of the Act between the Minister and the local authorities before the making of the order desig nating the area of land in question as the site of the proposed new town. On the facts the learned Judge held that there was the requisite consultation; but in dealing with the question, at page 500, the learned Judge observed:

The word consulation is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one.

It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place, having regard to the substance of the events. The word consult implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consultor to consider the Pros and Cons of the question before coming to a decision. A person consults another to be elucidated on the subject matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act. Having regard to the aforesaid observations let me now consider the correspondence which ended in the order made by the Government. On 27th June 1952, the first respondent wrote to the Municipality intimating their proposal to divide the Aruppukottai Municipality into 24 electoral wards and also to reserve two seats for women and allot the same to wards 5 and 1

2. The Chairman, Municipal Council, was also requested to place the above proposals at an urgent meeting of the Council within two weeks-He was also informed that any suggestions which the Municipal Council may have to make before the expiry of three weeks would be considered by the Government. On 9th July 1952 the Municipal Council passed a resolution recommending to the first respondent that the two seats for women be reserved in wards 5 and 7 respectively instead of jwards 5 and 12 as suggested by the Government. The letter of the Chairman of the Municipal Council sent to the three Councillors who had dissented from the proposal of the Council, a copy of which was sent to the Government, gives the reasons for preferring ward Nos. 5 and 7 instead of 5 1

2. It reads:

The allotment of a womans seat to ward 12 as now proposed would mean allotting both the womans seats to a single community the Devangar community which is already the biggest single community in the Municipality resulting in the distribution of the wards on an unfair basis Besides this legitimate claim for a womans seat the Nadar community has a more reasonable claim to representation of the women in this town because the Nadar women are more than 75 per cent, educated and under the auspices of their Ladys Association containing more than 200 members they are taking a leading part in all the activities in this town, which are calculated to further the interests of women educationally and socially. I consider that for this important reason also the Nadar Community deserves to have a womans seat. The ward committee and the Council took this aspect also into consideration in allotting one of the womens seats to ward No. 7.

The reason given by the Municipality for suggesting a modification of the proposal made by the Government was that if the Governments proposal was carried out, the two womens seats would be captured by women belonging to the Devanga community and the women of the Nadar Community would be deprived of their right to be represented in the Council. The Government did not accept the proposal of the Municipality but instead the two seats for women were reserved in wards 2 and 12.

Relying upon the aforesaid correspondence, learned Counsel for the petitioners argued generally that though the Government went through the formality of a consultation, they did not, in fact, consult the Municipality. It was said that an authority consulting another should at least give reasons for the proposals so that the other may give its considered opinion in regard to the proposals made, for any proposal unaccompanied by such reasons could not afford any opportunity to the other to advise for or a gainst the proposal. It is true that the giving of reasons by the Government would enable the Municipality to scrutinise them and offer advice or counter proposals. But I cannot say that the procedure adopted is not consultation in respect of the matters referred within the meaning of the section. The Government sent their proposals. Though the Government did not dis close their mind, by giving reasons nothing prevented the Municipality from making their suggestions in respect of the allotment of the reserved seats to wards 5 and 1

2. They could give reasons, as they had given in this case, why the proposal was not conducive in the interests of the women voters and how it could be suitably modified. The Government and the Municipality had a consultation in respect of the allotment of reserved seats for women of wards 5 and 1

2. The Government wanted to allot to wards Nos. 5 to 12, the Municipality, for reasons given, suggested they should be allotted to ward Nos. 5 and

7. It is therefore manifest th at the Government consulted the Municipality in respect of ward No. 12, and though the Municipality did not agree, they allotted the reserved seat to that ward. So far as ward No. 12 is concerned, the provisions of S. 43 have been complied with. But I find it very difficult to say the same in respect of the allotment of the reserved seat to ward No.

2. Learned Government Pleader contended that the Government consulted the Municipality in respect of the division of the Municipality into wards and the allotment of the reserved seats to the different wards and it is not necessary that they should have consulted the Municipality in respect of the suitability of the allotment of a reserved seat to a particular ward. To put in Other words, his argument was that a general consultation would be in compliance with the provisions of the Act and the fact that the allotment of a womans seat to ward No. 2 was not referred to the Municipality could not invalidate the allotment. This argument, in my view, is not only contrary to the provisions of S. 43 but defeats the purpose for which the said section was enacted. Under S. 43 the consultation referred in Sub S. (1) must be read distributively. The Local Government shall consult the Municipal Council for dividing the Municipality into wards and also shall consult the Municipality for determining the wards in which the seats, if any, reserved under Sub-S. (3) of S. 7 shall be set apart. If so read, the consultation also must be with reference to the allotment of the reserved seats to the particular wards. If the Government proposed ward No. 5 for the allotment of a reserved seat and after consulting the Municipality in respect of that proposal, allotted the same to ward No. 2, it is impossible to hold that the Government consulted the Municipality in determining the wards for allotting the reserved seats. If the Government asked the Municipality to send their proposals in respect of all the wards for allotment of reserved seats and thereafter allotted a reserved seat to a particular ward, it may perhaps be argued on which question I do not express my opinion that the Government has consulted the Municipality; but where, as in this case, the attention of the Municipality is focussed only to a particular ward and their advice in respect of that ward obtained, I find it very difficult to hold that the Government consulted the Municipality in respect of the allotment of the seat to a different ward. I therefore hold that the Government in contravention of the provisions of S. 43(b) did not consult the Municipality and, in respect of ward No. 2 therefore, the said allotment is illegal.

Learned Counsel for the petitioners then contended that the Government in allotting the reserved seats to ward Nos. 2 and 12 were actuated by mala fides . It was said that in the elections for these two wards held in 1948 the successful candidates were both from the Congress Party and therefore the present Congress Government allotted those two reserved seats to women so that their party candidates might be elected. In my view there is not even a slender basis for this grave allegation. The fact that Congress candidates were elected in the year 1948 is not a guarantee that the candidates of the same party would be elected in the year 195

2. Further, it is not the case of the petitioners in the affidavit that the Congress candidates were elected only for these two wards. Nor it is suggested that in these two wards alone they had an overwhelming majority, whereas they had lost or scraped through in other wards. Assuming that the Congress was successful in these two wards in 1948, it is impossible to hold from that fact alone that the Government allotted the reserved seats to these two wards to help their party candidates. The petitioners fail to establish mala fides in this case.

The learned Government Pleader raised a preliminary objection against the maintainability of the present application on the basis of S. 351(B) of the Madras District Municipalities Act which reads:

Notwithstanding anything contained in the Civil Procedure Code, 1958, or in any other law for the time being in force, no Court shall grant any permanent or temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under this Act for the preparation or publication of electoral rolls or for the conduct of any election.

This section obviously cannot affect the power of the High Court to issue suitable writs under Art. 226 of the Constitution of India. Under Art. 245 of the Constitution, the power of the Parliament or the Legislature of a State to make laws is subject to the provisions of the Constitution. So long Art. 226 stands in the Constitution, neither the Parliament nor the Legislature of a State can make laws depriving or limiting the power of the High Court to issue writs. I therefore hold that the provisions of S. 351-B cannot in any way affect the power of the High Court to issue writs in suitable cases. For the aforesaid reasons I hold that the order of the Government allotting the seat reserved for women to ward No. 2 is illegal and I therefore issue a direction restraining the respondents from holding the election in respect of the said reserved seat. This will not preclude the Government from allotting the said seat reserved for women to any of the wards after complying with the provisions of the Act. As the parties fail and succeed in part, there will be no order as regards costs.