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PETITIONER: CHIEF COMMISSIONER, AJMER

       Vs.

RESPONDENT: RADHEY SHYAM DANI.

DATE OF JUDGMENT: 15/11/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. DAS, S.K.

CITATION:  1957 AIR  304            1957 SCR   68

ACT: Municipal  Election-Electoral roll-Election Rules-No  Provi- sion for revision of electoral roll and for adjudication  of claims   Validity   of  the   electoral   roll-Ajmer-Merwara Municipalities Regulation,1925 (VI Of 1925), ss. 30 (2), 43- Ajmer State Municipalities Election Rules, 1955, r. 7.

HEADNOTE: Sub-section (2) Of S. 30 of the Ajmer-Merwara Municipalities Regulation,  925, as amended, provided that "  every  person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the  electoral roll  for a Parliamentary Constituency if that  Constituency had been co-extensive with the Municipality, and whose  name is  registered in the electoral roll for  the  Parliamentary Constituency comprising the Municipality, shall be  entitled to be enrolled as an elector of the Municipality"; and s. 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls  and  the adjudication of claims to  be  enrolled  and objections to enrolment. In exercise of this power the appellant framed Rules  which, inter  alia,  provided  that  the  electoral  roll  for  the particular  Municipality  shall  be the same  as  the  final printed roll for the Parliamentary Constituency representing the  area  covered  by the  Municipality.   He  notified  an election  programme and also authenticated and published  an electoral  roll  on August 8, 1955.   The  respondent  whose father’s  name  was recited wrongly in  the  electoral  roll applied  for  rectification of the mistake  in  the  Parlia- mentary  Electoral  Roll,  on August 10, 1955,  but  it  was rejected  on  the  ground that the  roll  of  the  Municipal elections had been finally published on August 8, 1955,  and therefore  no  correction  could be  made.   The  respondent challenged   the  validity  of  the  notification  and   the electoral roll. Held,   that   under  s.  30  (2)   Of   the   Ajmer-Merwara Municipalities Regulation, 1925, the electoral roll for  the Parliamentary constituency was only treated as the basis for

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the electoral roll of the Municipality and that the rules in so  far  as they made no provision for the revision  of  the electoral  roll,  for  the  adjudication  of  claims  to  be included  therein  or for entertaining  objections  to  such inclusion, were defective and, therefore, the electoral roll of  the  Ajmer  Municipality  which  was  authenticated  and published  by  the appellant on August 8, 1955, was  not  in conformity  with  the  provisions  of  S.  30  (2)  and  the relevant,provisions of the Regulation 69 and  could not form the basis of any valid elections  to  be held to the Ajmer Municipal Committee.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 181 of 1956. Appeal  by special leave from the judgment and  order  dated September  5,1955,  of the  Judicial  Commissioner’s  Court, Ajmer, in Civil Writ Petition No. 108 of 1955. M. M. Kaul and R. H. Dhebar, for the appellants. The respondent did not appear. 1956.  November 15.  The Judgment of the Court was delivered by BHAGWATI  J.-This is an appeal with special leave  from  the judgment  of the Judicial Commissioner,  Ajmer,  restraining the  District Magistrate, Ajmer, from holding the  elections and  poll to the Ajmer Municipal Committee on  September  9, 1955. The   respondent  claimed  to  be  a  voter  of  the   Ajmer Municipality.   By an order dated March 12, 1953, the  Ajmer Municipal  Committee had been suspended and that  suspension was  to  continue till September 11, 1955.  In view  of  the impending elections after the period of suspension was over, the  Chief  Commissioner, Ajmer, the  appellant  before  us, framed the Ajmer State Municipalities Election Rules,  1955, in  exercise of the powers conferred by s. 43 of the  Ajmer- Merwara  Municipalities  Regulation, 1925 (VI of  1925)  and published  them  in the Government Gazette dated  August  4, 1955.  On August 8, 1955, he notified an election  programme and  also  authenticated and published  an  electoral  roll. This  electoral roll had been corrected and altered  by  the orders  of the Sub-Divisional Officer on certain days  prior to August 8, 1955, but the respondent’s name was alleged  to have  been incorrectly described therein, his father’s  name having  been mentioned as Ratan Lal instead of  Chitar  Mal. On  August  10, 1955, he applied for the correction  of  his father’s  name  in the Parliamentary Electoral Roll  and  on August  16,  1955,  he  filed  his  nomination  paper.   His nomination was, however, rejected on August 17, 1955, 70 the  Returning  Officer stating that he was not one  of  the electors  according  to  the  roll.   His  application   for rectification of the mistake in the Parliamentary  Electoral Roll was also rejected on August 18, 1955, by the  Electoral Registration  Officer  on the ground that the  roll  of  the Municipal elections had been finally published on August  8, 1955,  and  therefore  no correction  could  be  made.   The respondent  thereupon  filed  on August  26,  1955,  a  writ petition  being Civil Writ Petition No. 108 of 1955  in  the Court  of the Judicial.  Commissioner at Ajmer  against  the appellant and the District Magistrate, Ajmer, inter alia for a  mandamus against the appellant to reconstitute the  Ajmer Municipal  Committee  by  a  properly  made  and   published notification  under s. 8(1) of the Regulation and  an  order

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against the District Magistrate, Ajmer, restraining him from holding  the  elections  and poll  to  the  Ajmer  Municipal Committee on September 9, 1955, as notified. The  learned Judicial Commissioner upheld the contention  of the  respondent  in  regard to  the  reconstitution  of  the Committee but did not issue any directions in regard to  the same  in  view of the fact that the  appellant  had  already before that date issued a notification under s. 8(1) of  the Regulation to reconstitute the Committee.  He also held that Rule 7 of the Election Rules was not in consonance with  and was in contradiction to s. 30, sub-s. (2), of the Regulation and  was in excess of the rule-making power  conferred  upon him,  and the elections proposed to be held on September  9, 1955, were not lawful.  He, therefore, directed the District Magistrate, Ajmer, to refrain from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955. On  an application made by the appellant for  a  certificate under  Art.  133(1)(c)  of  the  Constitution,  the  learned Judicial  Commissioner  was of opinion  that  the  direction given  by  him against the District Magistrate,  Ajmer,  was merely  not to hold elections on September 9,,1955,  and  as that  date  had  already passed  when  the  application  was disposed  of  by him, no useful purpose would be  served  by granting  him  a certificate and he accordingly  refused  to grant the same.  The appellant, 71 however,  approached this Court and obtained  special  leave under Art. 136 for filing an appeal against the, decision of the learned Judicial Commissioner. When  the  appeal  came  up  for  hearing  before  us,   the respondent  communicated to us his desire not to appear  and contest the appeal with the result that the appeal has  been heard by us exparte. At the outset we pointed out to the learned counsel for  the appellant   that  the  appeal  had  become  academic.    The appellant  had  in fact reconstituted  the  Ajmer  Municipal Committee  by  a proper notification under s.  8(1)  of  the Regulation and the date on which the elections and the  poll to  the  Ajmer Municipal Committee were to  he  held,  viz., September 9, 1955, had also passed.  The learned counsel for the   appellant,   however,  urged  before   us   that   the pronouncement  of the learned Judicial Commissioner  to  the effect  that  Rule  7  of the  Election  Rules  was  not  in consonance  with and was in contradiction to s.  30,  sub-s. (2), of the Regulation and was in excess of the  rule-making power conferred upon the appellant was a stumbling block  in the  way of the appellant holding further elections  on  the basis of the electoral roll as it had been authenticated and published  by him on August 8, 1955.  If that  pronouncement stood,   it   would  be  incumbent  on  the   appellant   to authenticate  and publish another electoral roll  and  incur the  expenses  which were inevitable in that  process.   He, therefore,  pressed  upon us that we should set  aside  that pronouncement  so that the Municipal elections may  be  held hereafter  without straining the attenuated finances of  the Municipality. The  relevant provisions which fall to be considered  by  us are the following:- "  Section  30. (1): A person shall not be deemed to  be  an elector  for any purpose of this Regulation or of  any  rule unless he is enrolled as an elector. (2)as amended by Act LX V of 1950: Every person who would be entitled  under the Representation of the People  Act,  1950 (XLIII of 1950) -to be registered in the electoral roll  for a Parliamentary Constituency if

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72 that   Constituency   had   been   co-extensive   with   the Municipality, and whose name is registered in the  electoral roll  for  the  Parliamentary  Constituency  comprising  the Municipality shall be entitled to be enrolled as an  elector of the Municipality. Section  43:  The Chief Commissioner may,  by  notification, make  rules consistent with this Regulation for the  purpose of  regulating all or any of the following matters,  namely, :- (a)....................... (b).......................... (c)the preparation and revision of electoral rolls, and  the adjudication  of  claims to be enrolled  and  objections  to enrolment; Section 248. (4): On publication in the official Gazette  of any rules made under this Regulation, such rules shall  have effect as if enacted in this Regulation. Elections Rules: Rule 7-Electoral rolls: In accordance with the provisions of sub-section   (2)  of  section  30  of  the  Ajmer   Merwara Municipalities  Regulation, 1925 (VI of 1925) the  electoral roll of the particular Municipality shall be the same as the final   printed  roll  for  a   Parliamentary   Constituency representing the area covered by that Municipality. Rule. 9-Electors: No person shall be deemed to be an elector for  the purposes of these rules unless his name appears  in the electoral rolls. mentioned above It  is clear from s. 30, sub-s. (2), of the Regulation  that in  order to be entitled to be enrolled as an elector  of  a Municipality, a person has to fulfill two conditions,  viz., (1) that he should be entitled under the Re. presentation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral  roll  for a Parliamentary  Constituency  if  that Constituency had been co-extensive with the Municipality’ nd (2) that his name should be registered in the electoral roll for    a   Parliamentary   Constituency    comprising    the Municipality.  If 73 both these conditions are fulfilled he would be entitled  to be enrolled as an elector of the Municipality.  In regard to the   first  condition  reference  need  be  made   to   the qualifications  prescribed  for  being  registered  in   the electoral roll for the Parliamentary Constituency and it  is only  if  these qualifications are possessed by  the  person that  he would be entitled to be so registered.   In  order, therefore,  to determine whether a person is entitled to  be enrolled  as  an  elector of a  Municipality,  it  would  be necessary  to ascertain in the first instance whether he  is entitled  to  be registered in the electoral  roll  for  the Parliamentary   Constituency.    Once  that   condition   is fulfilled, it would be further necessary to consider whether his  name  is  registered  in the  electoral  roll  for  the Parliamentary Constituency.  If, in spite of his  fulfilling the  condition that he is entitled to be registered  in  the electoral roll for the Parliamentary Constituency, his  name is  not  registered in the electoral roll for the  same,  he would  not be entitled to be enrolled as an elector  of  the Municipality.   The  latter condition does not  require  any scrutiny  for  its  fulfillment.   The  fact  of  his  being registered  in  the  electoral roll  for  the  Parliamentary Constituency would be apparent on the face of the  electoral roll  itself.   The  fulfillment  of  the  first  condition, however,  would be subject to scrutiny and it would be  open to  any  resident  of  the Municipality  to  object  to  the

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enrolment  of  a  particular person as  an  elector  of  the Municipality.   Even in the case of the electoral  roll  for the Parliamentary Constituency it would be open to a  person to  apply  for  a revision of that roll by  applying  for  a correction  of the mistakes or mis-descriptions which  might have  crept therein as also to have his name  registered  in the  roll  if  it had not been  so  registered  provided  he fulfilled the first condition, viz., that he was entitled to be  registered in the electoral roll for  the  Parliamentary Constituency.   Objections  could  also  be  filed  to   the enrolment   of  particular  persons  as  electors   in   the Parliamentary  Constituency  and also in  the  Municipality. Apart  from  the preparation of the electoral roll  for  the Municipality  it would, therefore, be necessary to  have  a, revision of such electoral rolls and 19 74 also  the adjudication of claims to be enrolled therein  and objections to such enrolment. This  was  clearly envisaged by the framers  of  the  Ajmer- Merwara  Municipalities Regulation, 1925, and with that  end in  view  it  was  provided  in  s.  43(c)  that  the  Chief Commissioner may by notification make rules consistent  with the Regulation for the purpose of regulating inter alia  the preparation   and  revision  of  electoral  rolls  and   the adjudication of claims to be enrolled and the objections  to enrolment.   Such  rules when framed and  published  in  the official Gazette were, by virtue of s. 248(4) to have effect as  if  enacted  in  the  Regulation.   They  were  to  have statutory  effect and were to be treated as part and  parcel of the Regulation and contained therein. Before the amendment of s. 30, sub-s. (2), of the Regulation by  Act LXV of 1950 there were in existence sub-ss. (2)  and (3) of that section which prescribed the qualifications  for being enrolled as electors of the Municipality.  They  were, however,  substituted by the amended s. 30, sub-s. (2),  set out hereinabove.  It thus substituted for the qualifications which  had  till  then been considered  requisite  for  such enrolment  all the qualifications which were  required.  for being registered in the electoral roll for the Parliamentary Constituency.   That, however, was a  provision  prescribing the  qualifications for the purposes of such  enrolment  and the object of the amendment was to adopt the electoral  roll for  the  Parliamentary Constituency as the  basis  for  the electoral  roll of the Municipality.  It did  not  eliminate the  further  steps in the matter of the  revision  of  such electoral  roll  as also the adjudication of  claims  to  be enrolled  therein and objections to such  enrollments.   The amendment  did  not obviate the necessity  of  taking  these further  steps  inspite  of  the  electoral  roll  for   the Parliamentary  Constituency being treated as the  electoral, roll  of the Municipality.  By thus treating  the  electoral roll for the Parliamentary Constituency as the basis for the electoral roll of the Municipality, the trouble and expenses involved  in the preparation of the electoral roll  for  the Municipality  were  saved-  but  the  Municipality  was  not absolved 75 from  the obligation of providing for the revision  of  such electoral  roll as well as the adjudication of claims to  be enrolled therein and objections to such enrolment. When  the Ajmer State Municipalities Election  Rules,  1955, came  to be framed in exercise of the power conferred by  s. 43  of the Regulation, the Chief Commissioner framed Rule  7 which  provided that the electoral roll for  the  particular

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Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by  the  Municipality.  He dispensed  with  the  independent preparation  by the Municipality of the electoral  roll  but did  nothing further.  Rule 9 provided that no person  shall be  deemed  to be an elector for the purpose  of  the  Rules unless  his name appeared in the electoral  rolls  mentioned above.  That had reference obviously to the second condition prescribed  in s. 30, sub-s. (2), of the Regulation but  did not go far enough.  It did not say that a person whose  name appeared  in  the  electoral  rolls  for  the  Parliamentary Constituency  was  to  be deemed to be an  elector  for  the purposes  of  the Rules so as to obviate  the  necessity  of fulfilling  the  first  condition  therein  prescribed   and rightly  so,  because,  if it did say so,  it  would  be  in conflict  with s. 30, sub-s. (2), of the Regulation.   These Rules did not eliminate the scrutiny which could be made  at the instance of the parties concerned as to whether a person whose  name  was registered in the electoral  roll  for  the Parliamentary  Constituency was in fact entitled  under  the Representation of the People Act, 1950 (XLIII of 1950) to be so  registered  and whether he possessed  the  qualification prescribed in that Act in this behalf nor did they eliminate the further scrutiny for the purpose of the revision of such electoral roll or the adjudication of claims to be  enrolled therein and objections to such enrolment. It  is  of  the  essence  of  these  elections  that  proper electoral  rolls  should be maintained and in order  that  a proper  electoral roll should be maintained it is  necessary that after the preparation of the electoral roll 76 opportunity  should  be given to the  parties  concerned  to scrutinize   whether  the  persons  enrolled   as   electors possessed the requisite qualifications.  Opportunity  should also be given for the revision of the electoral roll and for the  adjudication  of  claims to  be  enrolled  therein  and entertaining objections to such enrolnaent.  Unless this  is done,  the  entire  obligation  cast  upon  the  authorities holding  the elections is not discharged and  the  elections held  on  such imperfect electoral rolls  would  acquire  no validity  and  would  be  liable to  be  challenged  at  the instance  of the parties concerned.  It was in our  opinion, therefore,  necessary  for the Chief Commissioner  to  frame rules in this behalf, and in so far as the rules which  were thus framed omitted these provisions they were defective. It  was urged that the expression " the final  printed  roll for  the  Parliamentary Constituency " predicated  that  the electoral  roll for the Parliamentary Constituency had  been finalised  after  going  through  the  whole  procedure   in accordance with the provisions of the Representation of  the People  Act, 1950 (XLIII of 1950) and, therefore, there  was no necessity for making any further provision of that nature in  the  matter of the electoral roll of  the  Municipality. This  contention  is unsound for the simple reason  that  by using this phraseology the whole of the procedure laid  down in  the  Representation of the People Act,  1950  (XLIII  of 1950)  is not bodily incorporated in the Ajmer-Merwar  Muni- cipalities  Regulation,  1925  (VI of  1925).   Neither  the Regulation nor the Rules which have been framed by the Chief Commissioner in exercise of the powers conferred under s. 43 of the Regulation make any mention of any such incorporation nor  is  it  possible  to  urge  that,  merely  because  the electoral  roll  for  the  Parliamentary  Constituency   was treated  as  the  basis  for  the  electoral  roll  of   the Municipality,  these provisions were bodily incorporated  in

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the Rules.  If Rules 7 and 9 above referred to were intended to  form  a  complete  code  for  the  finalisation  of  the electoral  roll of the Municipality they did not  serve  the intended  purpose  and  were either  inconsistent  with  the provisions  of s. 30, sub-s. (2), of the Regulation or  were defective in so far as they 77 failed  to  provide the proper procedure for taking  of  the steps  therein above indicated for finalising the  electoral roll of the Municipality.  If that was the true position the electoral   roll   of  the  Municipality  which   had   been authenticated  and  published by the Chief  Commissioner  on August 8, 1955, was certainly not an electoral roll prepared in  accordance with law on the basis of which the  elections and  poll  to the Ajmer Municipal Committee  could  be  held either on September 9, 1955, or at any time thereafter. In  the view which we hold, it is not necessary to  consider whether,  in  the event of an inconsistency between  s.  30, sub-s.  (2), of the Regulation and the Rules framed  by  the Chief Commissioner in exercise of the power conferred  under s.  43 of the Regulation, the section would prevail  or  the Rules.   Suffice  it to say that the electoral roll  of  the Ajmer Municipality which was authenticated and published  by the  Chief  Commissioner  on  August 8,  1955,  was  not  in conformity with the provisions of s. 30, sub-s. (2), and the relevant provisions of the Regulation and could not form the basis  of  any  valid  elections to be  held  to  the  Ajmer Municipal Committee. Under  the circumstances we see no substance in  the  appeal and  dismiss the same.  There will be, however, no order  as to  costs of the appeal in so far as the respondent has  not appeared and contested the appeal before us. Appeal dismissed.