Chief Commissioner, Ajmer v. Radhey Shyam Dani.

Dani.

J. Section 43 : The Chief Commissioner may, by notifi-BTiagWali 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, 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 nave 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 Parliamen-tary 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 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-sive with the Municipality, and (2) that his name should be registered in the electoral roll for a Parlia• mentary Constituency comprising the Municipality. If both these conditions are fulfilled he would be entitled 1956 to be enrolled as an elector of the Municipality. In C/aief eo .. ...u-. regard to the first condition reference need be Jllade to lioiur, Ajriur v. the qualifications prescribed· for being registered in the Rllllltt1 s1i1-electoral roll for the Parliamentary Constituency and Daai it is only i£ these qualifications are possessed by the Blulpati 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 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 roll for 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 the 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 also the adjudication of claims to be enrolled therein Chief Commir and objections to such enrolment.

sionn, .Ajmer This was clearly envisaged by the framers of the

v.

Rhd/,,y Shy1Jm Ajmer-Merwara Municipalities Regulation, 1925, and

Dani. with that end in view it was provided in s. 43(c) that BhagwaJi ]. the Chief Commissioner may by notification make rules

consistent with the Regulation for the purpose of regulating inter a!ia 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 Regu-lation 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 herein above. 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 qualifi-cations 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 thereir, and objections to such enrol-ments. The amendment did not obviate the necessity of taking these further steps in spite 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 Cons-tituency as the basis for the electoral roll of the Muni-cipality, the trouble and expenses involved in the preparation of the electoral roll for the Municipality were saved but the Municipality was not absolved from the obligation of providing for the revision of 1956 such electoral roll as well as the adjudication of claims C/riej Commis-to be enrolled therein and objections to such enrol-siontT, Ajmnr ment. v.

When the Ajmer State Municipalities Election Rules, 1955, came to be framed in exercise of the power con-Bhopali J. 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 as the final printed roll for the Parliamentary Consti-tuency representing the area covered by the Munici-pality. He dispensed with the independent preparation 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 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 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-nate the further scrutiny for the purpose of the revi-sion 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 neces-sary that after the preparation of the electoral roll 1956 opportunity should be given to the parties concerned conmm· to scrutinize whether the· persons enrolled as electors Chief possessed the requisite qualifications. Opportunity sioner, .Ajmtr should also be given for the revision of the electoral roll

v.

.Rodlrey Sl!1am and for the adjudication of claims to be enrolled therein

Dani. and entertaining objections to such enrolment. Unless

this is done, the entire obligation cast upon the autho-BhagwotiJ. rities 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 \nstance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commis-sioner 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 Consti-tuency had been finalished 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 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 the 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 of any such incorporation nor is it possible to urge that, merely because the electoral roll for the Parlia-mentary Constituency was treated as the basis for the electoral roll of the Municipality, these provisions were bodily incorporated in 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 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 they failed to provide the proper procedure for taking of the 1956 steps hereinabove indicated for finalising the electoral Chief ConwW-roll of ~he Municipality. If that was the true position sioner 4frM' the electoral roll of the Municipality which had been v. Ratlliey Shyam authenticated and published by the Chief Commissioner Dani on August 8, 1955, was certainly not an electoral roll J, Bhllgwati 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 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 the basis of any valid elections to be held to the Ajmer Municipal Committee.

Under the circuP1;,tances we see no substance in the appeal and dismiss tb.e 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.

RA JES KANT A ROY

fJ. Novemh<T 19

SANTI DEBI

(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.