P.A.Choudary, J.:-

(1) The comprador economic system established in our country by the east india company and enforced by the might of the british arms and ocerated for the quick and unjust enrichment of the middle - man and his british principals had impoverished our farmers and exposed them to ever - recurring famines and pestilence. The honest tiller of the soil whom swift recognized as the 'benefactor of humanity', had been bled white in our country. Protesting against this, the mahatma in his statement made under section 342 of the criminal procedure code, to the ahmedabad sessions court in the year 1922. Said,

"little do town dwellers know how the semistarved masses of india are slowly sinking to lifelessness little do they know that their miserable comfort represents the brokerage they get for the work they do for the foreign exploiter, that the profits and the brokerage are sucked from the masses little do they realize that the government established by law in british india is carried on for this exploitation of the masses. No sophistry, no jugglery in figures can explain away the evidence that the skeletons in many villages present to the naked eye i have no doubt whatsoever that both england and the town dwellers of india will have to answer, if there is a god above, for this crime agsinst humanity which is perhaps unequaled in history"

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In addition, the indian peasant suffers in common with the farmers all over the world from the economic process of scissors. He has thus today become socially stagnant, economically vulnerable and educationally backward.

(2) The state from time to time has been taking steps to alleviate his economic suffering. The andhra pradesh (agricultural produce and livestock) markets act, 1966 (here in after referred to as 'the act') is one such measure. Its principal mechanism is to establish regulated markets with a hope to secure remunerative prices to the farmer. It seeks to regulate the purchase and sale of notified agricultural produce,live - stock and products of livestock by establishing markets and securing the best price for the fanner. Under its provision the state government is competent to notify any area as a notified area within whose boundaries market - yards would be established by a market committee. A market committee would be constituted by the government as a body corporate for each notified area. The market committee is the principal legal instrument for the enforcement of the provisions of the act. It has the powers to establish markets at certain places, provide facilities in that market yard and generally supervise the entire business transactions therein. The market committee has power to levy fees on any notified agricultural produce, livestock or products of livestock the non - payment on which invites pre secution and punishment in a criminal court. No person can act within a notified areas as a broker or a carting or a clearing agent, ware houseman, weighman, except in accordance with a licence granted by the market committee. Under rule 54, market committee is empowered to conduct sale of all the notified agricultural produce, livestock or oroducts of livestock brought into the market yard for sale by the method of open auction or tender systems or any other system specified by the bye - laws made by the market committee. The idea is to secure competitive price and prompt payment. Under rule 57, all the weighment, measurement or counting as the case may be, of the notified agricultural produce, live stock or products of livestock purchased or sold in the market and those under a storage, pressing, or processing or exporting the notified market area shall be conducted under the control of the market committee through licensed weighmen who shall render such accounts therefor as may be specified by the market committee. The authorized officers of the market committee may at any time without notice examine and test any scale, weight or measure used. In addition to the above, section 7 (6) forbids purchase or sale of any notified agricultural produce, livestock and products of iviestock in a notified area outside the markets set up by the market committee.

(3) Now it is clear from the above resume of the several provisions of the act, that the powers given to the market committee under the act, are those of a sovereign character and they are capable of being used against the interests of growers and the traders. The prohibition contained in section 7 (6) of the act directly interferes with and restricts the trader's right to do business and the grower's right to carry on his occupation guaranteed under article 19 of the constitution and compels them to resort to the regulated market mechanism set up by the act. The power of the market committee to impose monetary burdens and to coerce payment by resorting to the method of prosecution show (he sovereign character of the market committee. In short the market committee is not a voluntary organization. It functions through the state coercive authority and shares in sovereign authority of the state.

(4) Clearly these coercive powers are intended to operate principally upon the traders and the growers of agricultural produce and the owners of livestock and products of live stock. The fact that the special interests of the growers and the traders are affected by the operation of the act is judicially noted by a division bench of this court in d, ramarao vs. Govt. Of andhra pradesh and others (1) air. 1971 a. P. 353 to which one of us (madhava reddy j) is a party. It is in keeping with the scheme of the act that in the matter of composition of that all important organ, the market committee, the growers of agricultural produce, the owners of livestock and the livestock products and traders are given not only heavy weightage but also almost equal representation. Section 5 cl. (1) of the act declares that

"every market committee shall consist of such number of persons being not less than 12 and not more than 16 as may be fixed by the government"

, half of whom should be the representatives of the growers and roughly the other half should be traders. The act maintains this balance of representation between the traders on the one hand and the agriculturists on the other as necessary for the promotion and protection of their rival interests. But having, recognized the fact the act almost equally affects both the growers and the traders it provides for the election of traders representatives only while leaving the growers representatives to be nominated by the government.

(5) while section 5 (1) (i) says that not less than one - half of the members fixed by the government should be appointed by the 'government after consultation with the director of marketing from among the growers of agricultural produce and owners of livestock and products of live stock in the notified area and section 5 (1) (ii) provides for the nomination of one member by the government representing the co - operative marketing society and sec. 5 (1) (iii) (a) of the act provides for the nomination of the chairman of the municipality or the sarpanch, section 5 (1) (iv) directs that the remaining members should be elected in the prescribed manner by the persons licenced under sub section (1) of section 7 of the act in the notified area from among themselves. Thus, excluding the three representatives, one representing the co - operative marketing society, and one official interest and another of a local body, the bulk of the members of the committee are either elected or nominated. But they are nominated under section 5 (1) if they are growers of an agricultural produce and the owners of livestock and products of livestock in a notified area and elected if they are licensed traders within the notified area under section 5 (1) (iv). In doing so, does the act infringe the rights of the petitioners growers under article 14 of the constitution ? thus the present legal dispute arises out of the two diametrically opposed modes of nomination and election provided for by he act.

(6) Three principal questions are raised by the petitioners for the decision of this court. (1) whether section 5 which while denying the right to the growers of agricultural produce and owners of livestock and products of livestock in the notified area to elect their own representatives to the market committee provides for the election of the traders 'represen tatives to the market committee is constitutionally discriminatory under art. 14 of the constitution ? (2) whether the provisions of sec. 5 (1) suffer from the vice of arbitrariness for total want of any guidance whatsoever made available to the government in choosing the representatives of the growers of agricultural produce and the owners of livestock and products of livestock in the notified area ? (3) whether in the absence of any rules made under section' 33 of the act relating to the method and mode of nominating the growers representatives and their conditions of eligibility the power of the government to nominate the representatives of gowers of agricultural produce and the owners of livestock and products of live stock in the notified area to the market committee cannot be exercised

(7) Article 1 4 expresses the republican faith that all men are created equal and are entitled to equality before law and to equal right to pursue their happiness. In the undying words of lincoln it rests upon "the proposition that all men are created equal". Emphasizing the high purpose underlying article 14, subbarao j (as he then was) in lachman dass. V. State of punjab (2) air 1963 sc 222 hailed its content as 'glorious' and chandrachud j (as he then was) speaking in smt. India nehru gandhi, v. Raj nara in (3) air 1975 sc 2472 located in it some of those inalienable and unalterable features of our constitution. Litera"y speaking article 14 commands that the state in what it forbids inasmuch as in what it permits should treat all alike.

(8) This command in its origin was negative and was addressed to 'eqalite de droit' (legal equality) and not to 'eqalite de fait' (factual equaiity) even so, this concept of legal equality," "ended the long nightmare of legal oppression. It turned him from a beast of burden into a human being. It determined that, when science should be invoked to increase the output of the soil its cultivator, not an absentee owner, should reap the fruits, the principle which released him he described as equality, the destruction of privilege, democracy, the victory of plain people''. (bernard schwartz's "rights of the person" vol. Ii page 488.)

(9) But to - day this concept of legal equality is considered too narrow and inadequate to further never - ending process of the egalitarian evolution. By condemning both the rich and the poor for stealing bread, we are no doubt establishing legal equality but not factual equality. If we merely follow the literal command, law is sure to fail us in its mission of transforming the society as envisaged by our directive principles of state policy. What is worse, law then would become an effective instrument to preserve and perpetuate the existing inequities and inequalities of a static social order. By treating all alike which is some times called wooden equality you would only impart the starkest of factual inequality to the republic. In 'differentiation not in uniformity lies the path of progress (brandise). Among the barren rocks of wooden equality, "one cannot stop or think" (eliot). "law is essentially empiric. It addresses itself to the more or less crude outside world and not to the neat, logical models of the mind. To recognize marked differences that exist in fact is living law ; to disregard practical differences and concentrate on some abstract identities is lifeless logic". (justice frankfurter dissenting in morey v. Doud (354 u. S. 457).

(10) In order to redeem its pledges, article 14, however paradoxical it may appear, therefore, forces us to make reasonable classifications of men and things which are inherently unequal in nature.

"laws are not abstract propositions. They do not relate to abstract units a, b and c but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. Were the same."

(justice frankfurter in tinger vs. Texas, 310 u. S. 141.)

(11) It is this necessity of life which is the mother of judication invention of the theory of classification which has thus become the juglar vein of equal protection clause. What article 14 of the constitution therefore, means is not what it exactly says. Thus the content of the pledge of equal protection of laws in article 14 in the ultimate analysis reduces itself not to treating all alike but only in treating the like alike,

9. But the theory of classification though dictated by considerations of practical necessities of life should not be allowed to quench the celestial fire of noble rage and the spirit of moral revolt ever - burning within the ideal of equality and sanctified by the word of our constitution. The classification, therefore, in order to be constitutionally permissible must having regard to the legitimate purposes of the law, not only be just and reasonable but must also bear close nexus to the object sought to be achieved.

10. The rules by which a contention based on the ground of denial of equal - protection of laws should be tested are well summarized in lindsley vs. Natural carbonic gas company (4) 220 zs. 61 as follows : - 1.

"the equal - protection clause of the 14th amendment does not take from the state power to classify in the adoption of police laws, but admits of the exercise of wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore, is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary"

.

11. Our supreme court in budhan choudary, vs. State of bihar (5) air. 1955 sc. 191 laid down two broad tests for determining whether a classification is reasonable. They are : (a) the classifica ion must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (b) the differentia must have a rational relation to the object sought to be achieved by the statute in question.

(12) In applying the above tests to concrete cases courts act largely on the basis of subjective assessments made of two things. "one as to the relative invidiousness of particular differentiation and the other as to the relative importance of the subject with respect to which equality is sought'' (see state of gujarat vs. Sri ambica mills (6). Air. 1974 sc. 1300. In the above ambica mills case, the supreme court declared that.

"laws regulating economic activity would be viewed differently from laws which touch and concern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure etc. ,"

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In other words, our supreme court had decided in that case that claims seeking equal protection of laws relating to freedom of speech, voting rights and such other subjects as distinct from laws regulating economic activity would be entitled to receive greater and more vigorous judicial protection under article 14.

(13) Bearing the above in mind, we first note that the subject with respect to which the petitioners seek equal - protection of laws in cases before us fall within that category of subjects which the supreme court enumerated in the above ambica mills case as deserving greater judicial protection. What the petitioners seek in this case is nothing less than equal protection of laws relating to their right to vote and elect their representatives to the same extent and the same manner as the law has conferred that right on the traders. In any scheme of "fundamental interests" for purposes of the equal - protection clause recognized by our supreme court in the above ambica mills case, no right other than the right to self - governance can lay greater claims to judicial protection. After all, the summum bonum of all democratic institutions is self - government. This american doctrine of "fundamental interests" conceived for purposes of equality clause and first enunciated by the american supreme court in skinner, v. Oklahoma (7) 316 us 535 (1941) is a mere variant of another famous american constitutional doctrine first enunciated by justice stone (though not under that name) in u. S. V. Carolene products company (8) 304 us. 144 for purposes of due process. The latter is now firmly received into our corpus juris in kesavanand bharathi. In any democratic republic rights "which in a very real sense make all other rights in democratic society possible equal access to the voting booth, for both nomination and election, and the ability to seek redress of political grievances, either by striving for public office or by "getting at the rascals" in office, require special judicial protection". (see - "freedom and the court" by h. J abraham, second edition, pages 16 and 17.)

(14) The statutory purpose underlying the provision providing for representation to the market committee is to provide for the promotion and protection of interests of growers and traders who are the directly affected parties under the act. The statute accepts broadly the principle that these interests are best protected by permitting the affected owners of those interests to elect their representatives to the market committee in whose hands the management of the market yard and the enforcement of the entire act is placed. If the market committee is not properly balanced by due representation to the conflicting interests and is tilted against anyone of the two major interests that situation of imbalance would lead not only to a failure of the act but would also result in the traders' gaining at the cost of growers. For example, in the matter of providing facilities in the manner of selling the goods that are brought to the yard, in the matters of prompt payments to the growers and the proper use of the weights and measures' it is the voice and the hand of the market committee that rules. If the one who interprets the law is the real law - maker as gray said, the one who not only interprets it but also enforces it can be truly called as superior to the mere interpreter. By reason of the imbalance, trading interests as against the agricultural interests gain an upperhand. A proper representation on the market committee, therefore, is all important to subserve the interests of the act. If elections are regarded by the statute as the method appropriate for choosing the traders' representatives, on what intelligible ground are they for saken by the statute in the case of growers in answering these questions we must bear in mind the provisions and purposes of the act, its practical operation and the state of the previous law. We find that under the madras commercial crops act, 1932 (which stands repealed by the present act) , the growers were given along with the traders an equal right to elect their own reprentatives to the market committee. The practical effect of the failure of the statute to provide for election by grower is to deny effective and genuine representation to growers on the committee. A nominated person always beholden to his benefactor, the govt. , cannot be expected to safeguard to the same degree and to the same extent and with the same zeal and devotion the interests of the growers as a person elected would safeguard the interests of the traders. The failure of the statute to provide election by the growers to the market committee in our view, therefore, is not based on any reasonable criteria. But the learned government pleader argued that we should respect the wisdom of the legislature and should also take note of the fact that the body of the growers is large as compared to the traders. Undoubtedly, we should. It is primarily for the legislature to make the law and advance the social interests. Law making inherently involves some classification. This realization should lead us to a searching analysis of the legislative measure challenged on the ground of denial of equal - protection to find out whether classification is rational and reasonable and also bears a nexus sought to be achieved by the act. After making every reasonable presumption in favour of the legislative measure and after carefully examining its staturory purposes and practical consequences with the help of its own provisions if we are unable to discern any reasonable basis for the classification, we cannot but declare such law to be violative of article 14 and therefore unconstitutional. Judicial self - restraint should not be allowed to defeat judicial responsibility it every claim for the enforcement of a basis fundamental right like right to equality is to be negatived on the theory of the undisclosed wisdom of the legislature, then the fundamental right to equality would cease to be the rule and would become an exception. The only plausible defence in support of this differential treatment shown by the act to the growers rests upon the suggestion of the government. Pleader that the body of growers is large. In our view, that fact does not justify a denial of their right to equality even on practical consideration. It would be easier for the government to pick a proper person from a limited number of persons like traders. But the same thing would be impossible to be done by the government in a case of large number of persons. How can the state government know which one out of the several hundreds of agriculturists is better fitted to be on the market committee? the method of elections in those conditions becomes unavoidable. The argument based on numbers alone is not sufficient to sustain the classification.

(15) The above discussion clearly leads us to the conclusion that the impugned legislation is putting greater burdens on the growers of agriculural produce and owners of livestock and products of livestock as compared with the traders in the matter of their carrying on their respective occupations. What field j. , said interpreting the 14th amendment of the american constitution in barbier v. Conno!ly (9). (1885) 113 us. 27=28 law ed. 923.

"that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances', that no greater burdens should be laid upon one than are laid down on others in the same calling and conditions"

, (emphasis supplied) fully applies to the facts of our case. We do not find that there is from the point of view of the act itself, any intelligible distinction existing between the growers and the owners of livestock and products of live stock and the traders in the matter of choosing their representatives. The law therefore does not enact a reasonable classification but a class legislation. It is a hostile piece of legislation and it is discriminatory to the growers and accordingly constitutes a violation of the pledge of equal - protection of laws clause in our article 14.

(16) Mr. Ramaswamy, the learned government pleader however contended that the right to elect and to be elected is neither a common law right nor a fundamental right. He relied in support of this submission on ponnuswamy vs. Returning officer (10) 1952 scr. 218 and also shakwant ali vs. State of orrissa (11). Air. 1955 sc. 166 in ponnu swamy's case, the supreme court was called upon to interpret article 329 (b) of the constitution. The primary question there considered was beginning with what state of election process to the state and national legislatures the jurisdiction of courts has been ousted, we are not concerned with that question here and we therefore fail to see how the ratio of that case helps the respondents' arguments to show that the distinction made by the act in this case between growers and the traders is justifiable under article 14 of the constitution. It is no doubt true that the supreme court observed in that case, the right to vote or stand as a candidate for election is not a civil right but a creature of statue or special law and must be subject to the limitations imposed by it". This statement of law, is not intended in our view, to lay down the broad proposition that the entire activity of the legislature in the matter of constitution of representative bodies is immune from judicial scrutiny under article 14 of the constitution. The very case of shakwant an vs. State of oriasa (11) cited by the learned government pleader shows that the law of a legislature laying down disqualifications for the election to a local body like the municipality is judicially reviewable under article 14 of the constitution. In shakwant ali's case, section 10 of the orissa municipalities act which provided for the disqualification of a candidate elected to the municipal body was challenged as unconstitutional on the ground of article 14 of our constitution. The aforesaid section 16 reads as follows : -

(1)

"no person shall be qualified for election to a seat in a municipality, if such person. (i) is employed as a paid legal practitioner on behalf of the municipality or as legal practioner against the municipality."

The petitioner in that case who is a legal practitioner appearing against ths municipality challenged the validity of that section on the ground that that section makes an invidious discrimination between a legal practioner appearing against the municipality or employed as a paid legal practitioner on behalf of the municipality and other legal practitioners. The supreme court rejected this contention not on the ground that such a contention is not available to the petitioner but by examining the contention and by finding that the classification has a reasonable relation to the object sought to be achieved by the impugned legislation which is promotion of purity of public life, (see para 9 of the supreme court judgment). This decision therefore, in our view, would not help the respondents. On the other hand, it goes against the very basis of the respondents' submission because it examines the argument and rejects it on the ground of classification.

(17) It is always recognised that "a person has no inherent right to a particular thing is no answer to an attack based upon claims for equal protection of laws guaranteed by the constitution. Even a privilege, benefit, opportunity, or public advantage may not be granted to some but withheld from others where the basis of classification and difference in treatment is arbitrary". (see william w. Van alstyne's the demise of the right privilege distinction in constitutional law" in vol. 81 har - ward law review, p. 1439.)

(18) A constitution bench of the supreme court in nain sukh das and others vs. The state of u. P. (12) air 1953 sc 384 : 1953 scj 546 clearly ruled.

"any law providing for elections on basis of separate electorates for members of different religious communities offends against article 15 (1) of the constitution. The constitutional mandate to the state contained in that article not to discriminate against any citizen on the ground interalia, of religion clearly extends to political as well as to other rights, and any election held after the constitution in pursuance of such a law subject to clause (4) must be held void as being repugnant to the constitution"

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What applies to article 15 would equally apply to article 14 because article 14 is the genus of which articles 15, 16,17 and 18 are the spscies. We cannot therefore accept the argument of the state that because the petitioners have no right to contest to the market committee they would also have no right to complain the violation of their right under article 14.

(19) The next argument of the petitioners is that section 5 (1) of the act which according to them confers an unbridled and uncanalised power on the government to pick - and - choose the growers' representatives is violative, for that reason also of their rights contained in article 14 of the constitution. The petitioners' contention is that the grower of every notified agricultural produce and the owner of livestock and products of livestock is eligible to be appointed according to section 5 of the act on the market committee. It is submitted that the statute gives no guidance whatsoever to the government how and subject to what conditions their power to nominate the growers representatives and the representatives of the owners of livestock and products of livestock shouid be exercised. In the absence of any such guidelines, it is argued the government can pick and - choose any grower or owner of livestock or products of live stock from any part of the notified area. We see considerable force in this submission of the petitioners. Rule of law requires that a government should justify its action on the basis of some settled not adhoc principle. The exercise of power without reference to any settled principle or standard, is subversive of rule of law - an unlimited discretion leads to worst of despotism. It is well said that where law ends, tyranny begins. Law cannot co - exist with unlimited discretion. In the state of andhra pradesh vs. Nalla raja reddy (13) a,i. R. 1967 s. C. 1458 the supreme court observed.

"a statute may expressly make a discrimination between persons or things or may confer power on an authority who would be in a position to do so. Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately"

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But, we must note the other side of this argument : -

"every governmental and legal system in world history has involved both rules and discretion. No government has ever been a government of laws and not of men in the sense of eliminating all discretionary power. Every government has always been a government of laws and of men. A close look at the meaning of aristotle, the first user of the phrase "government of laws and not of men", shows quite clearly that he did not mean that governments could exist without discretionary power".

(see "discretionary justice" by kenneth culp davis, p. 17) in jyoti prasad vs. Union territory of delhi (14) a. I. R. 1961 s. C. 1602, it is laid down that,"guidance or standard can be gathered from the preamble of the act read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which, the court might take judicial notice or of which it is appraised by evidence before it is in the form of affidavits", similarly, in ramakrishna dalmia vs. Justice tendolkar (15) a. I. R. 1958 s. C, 538) the supreme court laid down that, "the court will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the government in the matter of the selection or classification. After such scrutiny the court will strike down the statue if it does not lay down any principle or policy for guiding the exercise of discretion by the government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the government so as to enable it to discriminate between persons or things similarly situate and that therefore, the discrimination is inherent in the statute itself". Applying the above to the facts of the case and taking into account the language of the preamble and the surrounding circumstances and the underlying policy of the act we fail to find any standard in the act providing for the nomination of one grower in preference to another. For example, the question why are the petitioners not chosen, cannot be answered with reference to any principle or standard that is discernable either from the express language of the act or from its unexpressed intention. We therefore find that section 5 (1) of the act in its present form and state provides for delegation of arbitrary and uncontrolled power to the government so as to enable it to discriminate between grower and grower of agricultural produce and owner and owner of live stock and products of livestock. The judgment of the supreme court in ketharani vs. Sourastra (16) a. I. R. 1952 s c. 123 cited by the government pleader does not lay down any different principle we therefore uphold this argument of the petitioners also.

(20) The last and the final submission of the petitioners is based upon the argument that the exercise of the power contemplated under section 5 (1) of the act by the government in the absence of any rule contemplated by the legislature to be made under section 33 of the act would defeat tne legislative object. The petitioners argument is that the legislature contemplated the discretion conferred on the government should be controlled by rules made by the government under section 33 of the act. In the absence of those rules which would have operated as 'check' on the power of the government, the government is not empowered to exercise its authority under section 5 (1) of the act alone. The petitioners contended that, that would amount to defeating the purpose of the act. In support of this contention, they cited a judgment of the division bench of this court reported in tirumalasetty kotaiah v. Dt. Collector, guntur (17). In that case, which arose under the andhra pradesh gram panchayat act, a division bench of this court held that as no rules are prescribed under s. 3 (2) of the gram panchayats act for merging the two panchayats and for laying down the procedure for consulting the gram panchayats which are affected as contemplated by s, 3 (2) proviso, the notifications merging the gram panchayats were bad. In other words, the petitioners' argument amounts to saying the governmental power to sppoint under s. 5 (1) of the act comes into operation only when the rules are made under section 33 of the act we find it difficult to agree with this contention. In tiru - malasetty kotaiah v. Qt. Collector, guntur (17) 1968 (1) an w. R. 155 the section which gives the power to the commissioner to cancel a notification or to merge the two panchayats added a rider that that power should be exercised "in accordance with such rules as may be prescribed in this behalf". The division bench is really interpreting this language of the section in holding that the exercise of the power cannot be divested from the procedural safeguards intended to be enacted by the rules but in the present case, the scheme of the act is different in that that the power under section 5 (1) is not subjected to any rules the government may or may not make. The language under section 5 (1) is absolute and does not depend for its exercise upon any other provision of the act, it is one thing to say that section 5 (1) is bad for failure to provide any guidelines and another thing to say that section 5 (1) has not come into existence at all without appropriate rules being made by the government under s. 33 of the act. The validity as well as the interpretation of section 5 (1) must depend upon its language. So long the statute does not say that the power in the main body of the act is subject to any rules to be made, we cannot but give effect to the section even without the rules. We hold that section 5 (1) is complete and self - operative and does not therefore depend upon for its efficacy or enforcement on section 33 of the act.

(21) For the reasons above mentioned, we hold sec. 5 (1) (i) of the andhra pradesh (agricultural produce and livestock) markets act, 1966 is unconstitutional as offending the equality clause of article 14 of the constitution. We accordingly declare it to be so. Writ appeal no. 244 of 1979.

(22) This is an appeal preferred by the seven appellants against a judgment of our learned brother gangadhara rao j. , dismissing their writ petition no. 3465/79 challenging the nomination of the respondents 4 to 12 as grower members by the government under section 5 (1) (i) of the act to the chittoor agricultural market committee. In this appeal, which we have heard along with the above matters (batch of wrrt petitions) , an additional point relating to the meaning of section 5 (1) (i) of the act is raised for our consideration. section 5 (1) (i) of the act reads as follows: -

5. (1) (i)

"not less than one - half of the members to be appointed by the government, after consultation with the director of marketing, from among the growers of agricultural produce and the owners of livestock and products of livestock in the notified area."

(23) The undisputed facts taken from the counter affidavit filed by the assistant secretary to government are, that the director of marketing in his proceedings no. R, c. 111/2/3916/78 dated 27 - 12 - 78 appointed an election officer to conduct elections of the trader representatives to the market committee, chittoor and also requested by the same proceedings the assistant director to submit a panel of names under section 5 (1) of the act to reach the director on 18 - 1 - 79. The assistant director of marketing for chittoor submitted panel of names in his proceedings dated 18 - 1 - 79 in which the names of some of the writ petitioners have not been included. But what is of significance is that the names of respondents 4 to 12 did not figure in that panel. The government received a representation to the effect that the list of the names sent by the assistant director did not reflect the views of all the sections of the population. A list of 14 names was annexed to that representation received by the government. Thereupon, through a memorandum dated 23 - 2 - 79, a copy of the representation with 14 names was sent to the director of marketing for remarks and also to furnish the particulars of eligibility for nomination as members in respect of the persons mentioned jn the enclosure to the representation referred to above. By a letter dated 2 - 3 - 79, the director of marketing forwarded the particulars called for, and also stated that certain candidates mentioned in the annexure under item nos 9, 13, and 14 are not suitable for recommendation as growers for the reasons noted against their names. On receipt of this recommendation of the director of marketing the government nominated respondents 4 to 1 2 to this writ appeal as members to chittoor agricultural market committee. It is this order of the government dated 7 - 4 - 79 in g. 0. Rt. No. 1021 food and agriculture department. , which was unsuccessfully challenged in the writ petition.

(24) The particular question which is raised in this writ appeal is that in nominating the respondents 4 to 12 mandatory requirements of 'consultation' provided for by section 5 (1) (i) of the act, are not complied with the learned judge who negatived that contention found tnat the facts, stated above are substantially correct, but rejected the argument of the writ appellants that

"the government should consult the director of marketing with respect to each person before nominating him under section 5 (1) (i) of the act"

, holding that, that is not necessary under the act. The argument of the appellants that calling for particulars is no consultation and that the government must inform the director the names of persons whom they want to nominate and call for his objections, was rejected.

(25) The question is therefore whether the process adopted by the government in nominating the respondents 4 to 12 amounts to consulation as contenplated by section 5 (1) (i) of the act. The word 'consultation' is not dafined by the act. According to oxford dictionary. 'consultation' means "the action of taking counsel together", a confe - rence in which the parties consult and deliberate". "use the right word" a publication of the reader's digest gives the nuance of the word "consult", as 'referring to discussions held to clarify a question or reach an agreement' ambrose bierce, america's one of the gratest satirists humorously defines the word "consult" in his "the devil's dictionary" as meaning "to seek another's approval of a course already decided on". According to these literal authorities the act of consultation involves the meeting of two or more minds on a proposal made by one to the other followed by a deliberation among them all on merits or demerits of that proposal.

(26) In decided cases also the above meaning of the word 'consultation' is broadly accepted by courts. Following an english decision of morris j. Reported in fletcher vs. Minister of town planning (18) (1947) (2) all. E. R. 496, 500 that great and eminent judge subbarao j (as he then was) in pushpam v. State of madras (19) air. 1953 mad. 392 said the following regarding the meaning of the word 'consulting' occuring in madras district municipalities act. "the word 'consult' implies a conference of two or more persons or an impect 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 ". 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. " an eminent english judge lord greene m. R. In rollo v. Minister of town and country planning (20) , (1948) i all. E. R. 13, 17 authoritatively declared in detail what 'consultation' means. He stated, "that, on the one side, the minister must supply sufficient information to the local autohority to enable them to tender advice and, on the otherhand, a sufficient opportunity must be given to the local authority to tender that advice. " in chandramouleswar v. Patna high court (21) , air. 1970 sc. 370, 374 our supreme court while interpreting the word 'consultation' occuring in article 233 of the constitution, made the following observations.

"no doubt, the appointment of a person to be a district judge rests with the governor but he cannot make the appointment on his own initiative and must do so in consultation with the high court. The underlying idea of the article is that the governor should make up his mind after there has been a deliberation with high court. This does not mean that the governor must accept whatever advice is given by the high court but the article does require that the governor should obtain from the high court its views on the merits or demerits of persons among whom the choice of promotions is to be limited."

A division bench of our high court in donda ramarao. V. , state (22) air. 1971 ap. 353, 355 ruled that the above observations of the supreme court on article 233 of the constitution control the choice of the meaning to be given to the word 'consultation' occurring in section 5 (1) (i) of the act. The division bench ruled.

"in the light of this judgment of their lordships of the supreme court it must be held that the appointment of respondents 4 to 11 in w. P. No. 3115/69 was not made after consultation with the director and was therefore made in contravention of s. 5 (1) (i) of the act."

The above discussion would clearly show that the submission of the appellants is well supported both in principle and on authority. Merely calling for eligibility cannot be construed as an act of 'consultation'. But our learned brother distinguished the supreme court judgment on the ground that it relates to the interpretation of article 233 of the constitution. We cannot agree. The formula of "consultation" is generally used by the legislature not only to provide some assistance to the authority but also to impose some limitations on the authority whose power it is to make the final choice. In the context of that formula that word is therefore generally construed not only as mandatory and also as condition precedent for the exercise of the ultimate power requiring the meeting of the minds of the parties on the proposition involved. The recent judgment of the privy council reported in portland corporation v. Attorney general of mauritius (23) 1965 ac. 1111 is also a clear authority in support of the appellants' general contention relating to the meaning to be given to the word 'consultation'. All the above cases clearly show that as a matter of law the word consultation' bears no other meaning than what was laid down in chandra - mouleswar v patna high court (21). Professor hwr. Wade in his 'administrative law', fourth edition at page 730 says", a statutory duty to consult requires that the person or body consulted should be given a reasonably ample and sufficient opportunity to state their views. " 'consultation' therefore, becomes possible only where the proposer put forth his views on merits. The meaning, therefore which the supreme court gave to the word 'consultation' occuring in article 233 is in no way special or particular and that is the reason why the aforesaid division bench applied that meaning to section 5 (1) (i) of the act. We are therefore unable to agree with our learned brother that under s. 5 (1) (i) of the act, the government is under no obligation to consult the director with regard to each person. On the other hand, we are of the clear opinion that, that is the exact legal duty cast upon the government under s. 5 (1) (i) of the act. In other words, s. 5 (1) (i) requires the government to ask the director for his views with reference to each one of the persons proposed to be nominated by the government.

(27) In this case, the government never made a proposal to the director to appoint the respondents 4 to 12 nor did the director tender any advice regarding that non existing proposal. Our learned brother clearly noted this but thought in a case like this under s. 5 (1) (i) of the act, it is enough if the director makes a recommendation of names out of which the government nominates some. With respect, we are unable to agree. This is really adopting a procedure not sanctioned by law.

(28) There are other points urged by the writ appellants regarding the undesirability of appointing the respondents 4 to 12, but in the view which we have taken of the interpretation of s. 5 (1) (i) of the act, we are not going into those questions.

(29) In the result, we set aside the judgment of our learned brother gangadhara rao j. , in w. P. No. 3465/79 and allow this writ appeal no. 244/79.

(30) Accordingly, all the above writ petitions 5131/77, 6606/79 6783/79, 516/78, and 5818/79, are allowed holding section 5 (1) (i) of the andhra pradesh (agricultural produce nd livestock) markets act 1966, is unconstitutional as offending the equality clause of article 14 of the constitution. There shall be no order as to costs.