19;6 N.-15. [19571 CHIEF COMMISSIONER, AJMER v. RADHEY SHYAM DANI. (S. R. DAS C.J

framed Rules which, inter alia, provided that the electoral roll for the particular Munici pality shall be the same as the final printed roll for the Parlia mentary Constituency Municipality. He notified an authenticated and published an electoral roll on August 8, 19'i5. in the The respondent whose father's name was recited wrongly electoral roll applied for rectification of the mistake 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. covered programme and the electoral roll Held, that under s. 30 (2) of the Ajmer-Merwara Municipalities the Parliamentary cons Regulation, 1925, !jtucncy was• only treated as the basis for 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, fQr the adjudication of claims to be included therein or for entertaining objections electoral roll of the inclusion, were defective and,. therefore, Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not provisions of " 30 (2) and the relevant provisions of the Rcgulatioo in conformity with I~ Chief 0-.U siorur, 4-;-t v. /Wh<J Shy1Jt1t Dani - / S.C.R. SUPREME COURT REPORTS (f) and could not form the basis of any valid dections to be held to the Ajmer Municipal Committee. C1V1L APPELLATE JurusmCTioN: 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. 1-08 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 from the judgment of the Judicial Commissioner, Ajmer, restraining the District Magistrate, Ajmer, from holding the elections imd poll to the Ajmer Municipal Com mittee on September 9, 1955. The respondent claimed to be a voter of the Ajmcr Municipality. By an order dated _March 12, 1953, Ajmer Municipal Committee had been suspended and that suspension was to continue till September 11, 1955. In view of the impending elections after the pericxl. of suspension was over, the Chief Commissioner, Ajmer, the appellant before us, the Ajmer Stat:c framed Municipalities Election Rules, 1955, in exercise of the powers conferred by the Ajmer-Mcrwara s. 43 of Municipalities Regulation, 1925 (VI of 1925) and pub lished August 4, 1955. On August 8, 1955, he notified an election programme and also authenticated and pub lished 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 men tioned as Ratan Lal instead of Chitar- Mal. On August 10, 1955, he applied for the correction of his father's the Parliamentary Electoral Roll and on August 16, 195~, he filed his nomination paper. His nomination was, however, rejected on August 17, 1955, the Government Gazette Chief C•mmi.s sirmer, Ajmer v. ,Rlulky Sh.Jam Dani Bhagwali j. 70 SUPREME COURT REPORTS [1957] the Returning Officer stating that he was not one of the electors according to the roll. His application for the Parliamentary Elec rectification of the mistake toral Roll was a~o 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 Magis trate, Ajmer, inter alia for a mandamus against appellant to reconstitute the Ajmer Municipal Commit tee by a properly made and published notification under s. 8(1) of the Regulation and an order 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 con tention of the respondent in regard to the reconstitu tion of the Committee but did not issue any directions. in regard to the same in view of the fact that appellant had already before that date issued a notifi cation under s. 8 ( 1) of the Regulation to reconstitute the Committee. He also held that Rule 7 of the Elec tion Rules was not in consonance with and was in con tradiction to s. 30, sub-s. (2), of the Regulation and was rule-making power conterred upon in excess of him, and the elections proposed to be held on &eptem ber 9, 1955, were not lawful. He, therefore, directed the District Magistrate, Ajmer, to refrain fro!Il holding the elections and poll to the Ajmer Municipal Commit tee on September 9, 1955. the appellant On an application made by 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 application was disposed of by him, no useful purpose would be served by granting him a certificate and he accordingly refused to gran~ the same. The appellant; :S.C.R. SUPREME COURT REPORTS 71 however, approached special leave under Art. 136 for filing an appeal against the decision of the learned Judicial Commissioner. this Court and obtained 'When the appeal came up for hearing before us, the respondent communicated appear and contest the appeal with the result that the appeal has been heard by us ex parte. to us his desire not 1956 Chu] Commis sio,..., Ajnlr v •. Rati!u.1 ShJlma Dani. Bhagwa# ]. reconstituted to the effect At the outset we pointed out to the learned counsel for the appellant that the appeal had become academic. the Ajmer The appellant had Municipal Committee by a proper notification under s. 8(1) of the Regulation and the date on which the elec tions and the poll to the Ajmer Municipal Committee to be held, viz., September 9, 1955, had also the appellant, how passed. The learned counsel for the pronouncement of the ever, urged before us that that Rule learned Judicial Commissioner 7 of the Election Rules was not in consonance with and was in contradiction to s. 30, sub-s. (2), of Regulation and was the Rule-making power conferred upon the appellant was a stumbling block in the way of the appellant holding further elec tions on the b~is 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 inevit able 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. in excess of The relevant provisions which fall to be considered by us are the following :- "Section 30. (J) : 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 LXV of 1950 : Every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered the electoral roll for a Parliamentary Constituency ' 1956 ChiefC......U Mner, Jf.jmat v. RM!le.J ~ ... Dani. BTiagWali J. 72 SUPREME COURT REPORTS [1957} that Constituency had been co-extensive with Municipality, and whose name is registered in the elec toral roll for the Parliamentary Constituency compris ing the Municipality shall be entitled to be enrolled as an elector of the Municipality. Section 43 : The Chief Commissioner may, by notifi cation, 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 rev1S1on of electoral rolls, to be enrolled and the adjudication of claims objections to enrolment; Section 248. ( 4) : On publication the official Gazette of any rules made under this Regulation, such rules shall nave effect as if enacted in this Regulation. Elections Rules : Rule 7-Electoral rolls : In accordance with 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 Parliamen tary Constituency representing the area covered by that Municipality. Rule 9-Electors : No person shall be deemed to the purposes of these rules unless rolls mentioned the electoral be an elector for his name appears above ........ " It is clear from s. 30, sub-s. (2), of the Regulation that in order to be entitled to be enrolled as an elec tor of a Municipality, a person has to fulfil two condi tions, viz., ( 1) that he should be entitled under the Re presentation of the People Act, 1950 (XLTII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co-exten that his name sive with should be registered in the electoral roll for a Parlia• If mentary Constituency comprising the Municipality. the Municipality, and (2) 1956 C/aief eo .. ...u-. lioiur, Ajriur v. Rllllltt1 s1i1- Daai Blulpati ] •. S.C.R. SUPREME COURT REPORTS 73 therefore, the Parliamentary Constituency. Once the condition that he in the electoral roll for 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 Jllade to the qualifications prescribed· for being registered in the the Parliamentary Constituency and electoral roll for it is only i£ these qualifications are possessed by the In person that he would be entitled to be so registered. to determine whether a person order, 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 condition is fulfilled, it would be further necessary to consider whether his name is registered in the electoral If, in spite of roll for the Parliamentary Constituency. to be his fulfilling is entitled registered the . Parliamentary Constituency, his name is not registered in the elec toral 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 fulfil ment. The fact of his being registered in the electoral the Parliamentary Constituency would be · apparent on the face of the electoral roll itself. The fulfilment of the first condition, however, would be subject to scrutiny and it would be open to any resi dent of the Municipality to object to the enrolment of a particular person as an elector of the Municipality. ' Even in the case of the electoral roll for the Parlia mentary 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 he filed to the enrolment of particular persons as electors in the Parliamentary Constituency and also in Municipality. Apart from the preparation of the elec toral roll for the Municipality it would, therefore, be necessary to have a revision of such electoral rolls and 19~6 Chief Commir sionn, .Ajmer v. Rhd/,,y Shy1Jm Dani. BhagwaJi ]. 74 SUPREME COURT REPORTS [1957) also the adjudication of claims to be enrolled therein and objections to such enrolment. the Regulation 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 the purpose of consistent with regulating inter a!ia the preparation and revision of electoral rolls and to be enrolled and the objections to enrolment. Such 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 Regu lation and contained therein. the adjudication of claims the qualifications which had the purposes of such enrolment and 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 qualifications for being enrolled as electors of Municipality. They were, however, substituted by amended s. 30, sub-s. (2), set out herein above. It thus substituted for been considered requisite for such enrolment all qualifications which were required for being registered in the electoral roll for the Parliamentary Constituency. That, however, was a provision prescribing the qualifi cations for object of the amendment was to adopt the electoral the basis roll for the Parliamentary Constituency 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 thereir, and objections to such enrol ments. The amendment did not obviate the necessity the electoral of taking these further steps roll for the Parliamentary Constituency being treated treating the electoral roll for the Parliamentary Cons tituency as the basis for the electoral roll of the Muni involved cipality, trouble and expenses the Municipality preparation of the electoral roll for were saved but the Municipality was not absolved the Municipality. By the electoral roll of in spite of 1956 C/riej Commis siontT, Ajmnr v. Bhopali J. S.C.R. SUPREME COURT REPORTS 75 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 enrol ment. When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power con ferred by s. 43 of the Regulation, the Chief Commis sioner framed Rule 7 which provided that the electoral roll for the particular Municipality shall be the same the Parliamentary Consti as the final printed roll for tuency representing the area covered by the Munici independent preparation pality. He dispensed with by the Municipality of the electoral roll hut did noth ing 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 mention ed above. That had reference obviously to the second condition prescribed in s. 30, sub-s. (2), of the Regula tion but did not go far enough. It did not say a person whose name appeared 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 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 the Parliamentary registered in the electoral roll for Constituency was in fact entitled under the Represen tation of the People Act, 1950 (XLIJI of 1950) to be so registered and whether he possessed the qualification prescribed in that Act in this behalf nor did they elimi the purpose of the revi nate the further scrutiny for sion of such electoral the adjudication of claims to be enrolled therein and objections to such enrolment. the necessity of fulfilling roll or 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 neces the electoral roll sary that after the preparation of 1956 Chief conmm· sioner, .Ajmtr v. .Rodlrey Sl!1am Dani. BhagwotiJ. 76 SUPREME COURT REPORTS [1957] requisite opportunity should be given to the parties concerned to scrutinize whether the· persons enrolled as electors possessed 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 enrolment. Unless this is done, the entire obligation cast upon the autho rities holding the elections is not discharged and elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the \nstance of the parties concerned. It was in our the Chief Commis opinion, sioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective. therefore, necessary for It was urged that the expression "the final printed the Parliamentary Constituency" predicated roll for the Parliamentary Consti that the electoral roll for tuency had been finalished after going through the whole procedure in accordance with the provisions of 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 electoral roll of the Municipality. This contention is unsound for the simple reason that by using this phra seology the tyhole 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 Regulation nor the Rules which have been framed by the Chief Commissioner in exercise of the powers con ferred under s. 43 of the Regulation make any mention to urge of any such incorporation nor is it possible that, merely because the electoral roll for the Parlia mentary Constituency was treated as the basis for the these provisions were electoral roll of the Municipality, If Rules 7 and 9 bodily incorporated in the Rules. above referred to were intended to form a complete code for the finalisation of the electoral roll of the Munici pality they did not serve the intended purpose and were either inconsistent with the provisions of s. 30, sub-s. (2), -0f the Regulation or were defective in so far as 1956 Chief ConwW sioner 4frM' v. Ratlliey Shyam Dani Bhllgwati J, S.C.R. SUPREME COURT REPORTS 77 failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of ~he Municipality. If that was the true position the Municipality which had been the electoral roll of 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 inconsistency consider whether, in the event of an 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 Com missioner 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 basis of any valid elections to be held to the Ajmer Municipal Committee. Under the circuP1;,tances we see no substance in the tb.e same. There will be, however, in so far as the the appeal appeal and dismiss no order as to costs of respondent has not appeared and contested before us. the appeal Appeal dismissed. RA JES KANT A ROY fJ. SANTI DEBI Novemh<T 19 (JAGANNADHADAS, B. P. S1NHA and }AFER IMAM, JJ.) Trust deed-Construction-Vested interest or contingent interest -Transfer of Property Act, 1882 (IV of 1882), ss. 19, 21-Attach able interest-Execution of decree-Compromise decree providing for a personal remedy and a charge-Whether personal remedy could be pursued in the first instance.