Chief Commissioner, Ajmer vs Radhey Shyam Dani

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 181 of 1956

Decision Date: 15 November 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das

In a civil appeal numbered 181 of 1956, the Supreme Court of India delivered its judgment on 15 November 1956. The case was styled Chief Commissioner, Ajmer versus Radhey Shyam Dani, with the Chief Commissioner appearing as petitioner and Mr Dani as respondent. The judgment was authored by Justice Natwarlal H. Bhagwati, who was joined on the bench by Justices Bhuvneshwar P. Sinha and S.K. Das. The decision is reported in the 1957 volumes of the All India Reporter at page 304 and in the Supreme Court Reporter at page 68. The matters before the Court concerned the Municipal Elections Act, the preparation and revision of electoral rolls, and the application of the Representation of the People Act, 1950 (XLIII of 1950). The relevant statutory framework included the Ajmer‑Merwara Municipalities Regulation, 1925 (vi of 1925), specifically sections 30(2) and 43, as well as the Ajmer State Municipalities Election Rules, 1955, rule 7. Section 30(2) of the Regulation provided that every person entitled under the Representation of the People Act to be registered in the parliamentary electoral roll for a constituency coinciding with a municipality, and whose name was already entered in that parliamentary roll, would be entitled to be enrolled as an elector of the municipality. Section 43 empowered the Chief Commissioner to make rules consistent with the Regulation for the preparation, revision, and adjudication of electoral rolls and related objections.

The Chief Commissioner, exercising the power under section 43, framed election rules that stipulated the municipal electoral roll would be identical to the final printed parliamentary roll covering the municipal area. By a notification, an election programme was issued and an electoral roll for the municipality was authenticated and published on 8 August 1955. The respondent, Mr Dani, discovered that his father’s name had been incorrectly transcribed in the parliamentary roll and therefore in the municipal roll. He filed an application on 10 August 1955 requesting correction of the error in the parliamentary electoral roll. The application was rejected on the ground that the municipal roll had already been finally published on 8 August 1955, and consequently no further correction could be entertained. Mr Dani subsequently challenged the validity of both the notification and the published municipal roll. The Court held that section 30(2) merely used the parliamentary roll as a basis for constructing the municipal roll and did not render the municipal roll automatically final. Because the rules framed by the Commissioner omitted any provision for revising the municipal roll, for adjudicating claims of inclusion, or for entertaining objections, the rules were found to be defective. Consequently, the municipal roll authenticated and published on 8 August 1955 did not comply with the requirements of section 30(2) and the relevant provisions of the Regulation. The Court therefore concluded that the roll could not serve as the foundation for any valid election to the Ajmer Municipal Committee. The judgment affirmed that the election programme and the associated poll scheduled for 9 September 1955 were restrained, and the appeal was allowed.

By special leave from the judgment and order dated 5 September 1955 of the Judicial Commissioner’s Court at Ajmer, in Civil Writ Petition No 108 of 1955, counsel for the appellants appeared. The counsel were identified as M M Kaul and R H Dhebar. The respondent did not make an appearance before the Court. The judgment was delivered on 15 November 1956 by Justice Bhagwati. This case was an appeal granted special leave against the judgment of the Judicial Commissioner, Ajmer, which had restrained the District Magistrate of Ajmer from conducting the elections and poll for the Ajmer Municipal Committee that had been scheduled for 9 September 1955. The respondent asserted that he was a registered voter of the Ajmer Municipality. By an order dated 12 March 1953, the Ajmer Municipal Committee had been suspended, and the suspension was to remain in force until 11 September 1955. With the suspension period approaching its end, the Chief Commissioner of Ajmer, who was the appellant before this Court, exercised the power conferred by section 43 of the Ajmer‑Merwara Municipalities Regulation, 1925 (VI of 1925) and framed the Ajmer State Municipalities Election Rules, 1955. Those Rules were published in the Government Gazette on 4 August 1955. On 8 August 1955 the Chief Commissioner issued a notification of the election programme and also authenticated and published an electoral roll. The electoral roll had been subject to corrections and alterations by orders of the Sub‑Divisional Officer on several occasions prior to 8 August 1955; however, the respondent’s entry was alleged to be erroneous because his father’s name was recorded as Ratan Lal instead of Chitar Mal. The respondent applied on 10 August 1955 for correction of his father’s name in the Parliamentary Electoral Roll and subsequently filed his nomination paper on 16 August 1955. The Returning Officer rejected his nomination on 17 August 1955, stating that the respondent was not listed among the electors according to the roll. The respondent’s request for rectification of the name mistake was denied on 18 August 1955 by the Electoral Registration Officer on the ground that the Municipal election roll had been finally published on 8 August 1955 and therefore no further correction could be entertained. Consequently, on 26 August 1955 the respondent instituted Civil Writ Petition No 108 of 1955 in the Court of the Judicial Commissioner at Ajmer against the appellant and the District Magistrate, seeking, inter alia, a mandamus compelling the appellant to reconstitute the Ajmer Municipal Committee by a properly made and published notification under section 8(1) of the Regulation, and an order restraining the District Magistrate from holding the elections and poll for the Committee on 9 September 1955 as had been notified. The learned Judicial Commissioner upheld the respondent’s claim that the Committee required reconstitution, but declined to issue any specific direction on that point because the appellant had already, before that date, issued a notification under section 8(1) of the Regulation effecting the reconstitution of the Committee. The Commissioner also held that Rule 7 of the Election Rules was inconsistent with, and exceeded the authority granted by, section 30, sub‑section (2), of the Regulation.

The Court observed that Rule 7 of the Election Rules conflicted with section 30, sub‑section (2), of the Municipalities Regulation and exceeded the rule‑making authority granted to the appellant. Consequently, the elections scheduled for 9 September 1955 were held to be unlawful, and the Court ordered the District Magistrate of Ajmer to refrain from conducting the elections and the poll on that date. The appellant later applied for a certificate under article 133(1)(c) of the Constitution, seeking confirmation of the earlier direction. The Judicial Commissioner considered that the direction merely barred the holding of elections on 9 September 1955, a date that had already elapsed when the application was decided, and therefore found that granting a certificate would serve no useful purpose. Accordingly, the certificate was refused.

Subsequently, the appellant obtained special leave to appeal to this Court under article 136. When the appeal was listed, the respondent communicated that he would not appear or contest the appeal, resulting in the matter being heard ex parte. At the outset, counsel for the appellant was informed that the appeal had become academic because the appellant had already reconstituted the Ajmer Municipal Committee by a proper notification under section 8(1) of the Regulation, and the date for the elections and poll, 9 September 1955, had likewise passed. Nevertheless, counsel argued that the Judicial Commissioner’s finding—that Rule 7 of the Election Rules was not in consonance with and contradicted section 30, sub‑section (2), of the Regulation and was beyond the appellant’s rule‑making power—created a significant obstacle. If that finding remained, the appellant would be compelled to authenticate and publish a new electoral roll, incurring inevitable expenses that would strain the municipality’s limited finances. Counsel therefore urged the Court to set aside the Judicial Commissioner’s pronouncement so that future municipal elections could be held without additional financial burden. The Court identified the relevant statutory provisions for consideration, namely section 30(1), which states that a person shall not be deemed an elector for any purpose of the Regulation or any rule unless he is enrolled as an elector, and section 30(2) as amended by Act LXV of 1950, which provides that every person entitled under the Representation of the People Act, 1950, to be registered in the electoral roll for a Parliamentary constituency shall be entitled to be enrolled as an elector of the municipality.

In this case, the Court explained that the legal provisions governing the preparation of municipal electoral rolls required a person to satisfy two distinct conditions in order to be recognised as an elector of a municipality. The first condition was that the person must be entitled, under the Representation of the People Act, 1950 (Act XLIII of 1950), to be entered in the electoral roll of a Parliamentary Constituency that either coincided with the municipality or included the municipality within its boundaries. The second condition was that the person’s name actually appear on that Parliamentary Constituency roll. The Court referred to Section 30 of the Ajmer Merwara Municipalities Regulation, 1925, which provides that a person shall not be deemed to be an elector for any purpose of the Regulation or of any rule unless he is enrolled as an elector, and, as amended, that every person who would be entitled under the Representation of the People Act to be registered in the electoral roll for a Parliamentary Constituency co‑extensive with the municipality shall be entitled to be enrolled as an elector of the municipality. Section 43 was also cited, noting that the Chief Commissioner may, by notification, make rules consistent with the Regulation to regulate, among other matters, the preparation and revision of electoral rolls and the adjudication of enrolment claims and objections. Section 248(4) was mentioned, stating that any rules made under the Regulation would take effect upon publication in the official Gazette as if they were part of the Regulation itself. The Elections Rules were then examined: Rule 7 declares that, in accordance with sub‑section (2) of Section 30, the electoral roll of a particular municipality shall be the same as the final printed roll for the Parliamentary Constituency covering that municipality; Rule 9 provides that no person shall be deemed an elector for the purposes of the rules unless his name appears in the aforementioned electoral rolls. The Court clarified that the first condition required a verification of the qualifications prescribed for registration in the Parliamentary Constituency roll; only if those qualifications were met could a person claim entitlement to be on that roll. Consequently, to determine municipal enrolment, the Court said it was necessary first to ascertain whether the individual was qualified to be registered in the Parliamentary Constituency roll. If that qualification was established, the second step was to check whether the person’s name was actually listed on that roll. The Court emphasized that the presence of a name on the Parliamentary Constituency roll was evident on the face of the roll and required no further inquiry, whereas the initial qualification condition could be subject to scrutiny and objections by any resident of the municipality.

The Court explained that although a person’s presence on the municipal electoral roll could be verified simply by looking at the roll, the first condition – the entitlement to be registered in the Parliamentary constituency roll – required careful examination. Any resident of the municipality could therefore raise an objection to the enrolment of a specific individual as a municipal elector. Likewise, a person could seek revision of the Parliamentary constituency roll by applying for correction of any mistakes or mis‑descriptions that may have entered the roll, and could also request that his name be entered if it had been omitted, provided he satisfied the initial entitlement condition of being eligible for registration in the Parliamentary constituency roll. The Court further noted that objections could be filed both against the enrolment of particular persons as electors in the Parliamentary constituency and against their enrolment as municipal electors. Consequently, beyond merely preparing the municipal electoral roll, it was necessary to provide for the revision of such rolls and for the adjudication of claims and objections relating to enrolment. The Court observed that the framers of the Ajmer‑Merwara Municipalities Regulation, 1925 had expressly contemplated this need, and that section 43(c) empowered the Chief Commissioner, by way of notification, to make rules consistent with the Regulation for the purpose of regulating, inter alia, the preparation and revision of electoral rolls and the adjudication of enrolment claims and objections. Once such rules were framed and published in the official Gazette, section 248(4) gave them the same effect as if they were enacted as part of the Regulation, thereby giving them statutory force and making them an integral part of the Regulation.

The Court then turned to the historical qualifications for municipal electors. Before the amendment of section 30, subsection (2) of the Regulation by Act LXV of 1950, subsections (2) and (3) of that section prescribed the qualifications required to be enrolled as municipal electors. The amendment substituted these provisions with the revised subsection (2) of section 30, which was set out earlier in the judgment. This new provision replaced the earlier qualifications with the qualifications necessary for registration in the Parliamentary constituency roll. While the amendment thereby prescribed the qualifications for municipal enrolment, its primary purpose was to adopt the Parliamentary constituency roll as the basis for the municipal electoral roll. The Court stressed that this change did not remove the additional procedural steps of revising the municipal roll, adjudicating enrolment claims, or hearing objections to enrolments. Even though the Parliamentary constituency roll was treated as the municipal roll, the necessity of these further steps remained, and the amendment did not obviate the requirement to carry out revision and adjudication procedures.

In the present case, the Court observed that although treating the parliamentary constituency roll as the municipal electoral roll saved the municipal authorities the trouble and expense of preparing a separate roll, the municipality was not relieved of its duty to revise that roll and to adjudicate claims and objections to enrolment. When the Ajmer State Municipalities Election Rules of 1955 were made under the authority granted by section 43 of the Regulation, the Chief Commissioner inserted Rule 7, which declared that the electoral roll for a particular municipality would be identical to the final printed roll for the parliamentary constituency covering that municipality. By doing so, the Commissioner eliminated the need for the municipality to prepare its own roll, but he made no further provision for the additional steps required under the Regulation. Rule 9 further provided that no person would be deemed an elector for the purposes of the Rules unless his name appeared in the rolls specified in Rule 7. This reference clearly related to the second condition laid down in section 30, sub‑section (2), of the Regulation, but the Rule stopped short of stating that any person whose name was on the parliamentary constituency roll would automatically be deemed an elector for municipal purposes. The Court noted that such an extension would have conflicted with section 30, sub‑section (2), of the Regulation and therefore was rightly omitted. Moreover, the Rules did not remove the possibility for interested parties to examine whether a person listed on the parliamentary roll was, in fact, entitled under the Representation of the People Act, 1950 to be so registered and whether that person possessed the qualifications prescribed in that Act. Neither did the Rules dispense with the necessity of further scrutiny for the revision of the roll or for the adjudication of claims to be enrolled and objections to such enrolment. The Court emphasized that a fundamental requirement of any election is the maintenance of a proper electoral roll. To ensure the roll’s correctness, it is essential that, after the roll is prepared, the parties concerned are given an opportunity to verify that the persons enlisted satisfy the required qualifications. They must also be allowed to seek revision of the roll, to have claims to be enrolled decided, and to raise objections to enrolment. Without providing these opportunities, the authorities conducting the election would not have fulfilled their statutory obligations, and elections held on such defective rolls would lack validity and could be challenged by the aggrieved parties. Consequently, the Court concluded that it was necessary for the Chief Commissioner to formulate rules that expressly covered these procedural safeguards.

It was observed that the rules framed by the Chief Commissioner were defective to the extent that they omitted the provisions that were required for the preparation of the municipal electoral roll. The petitioner contended that the expression “the final printed roll for the Parliamentary Constituency” implied that the parliamentary roll had already been finalized after completing the entire procedure prescribed by the Representation of the People Act, 1950 (XLIII of 1950). On that basis, the petitioner argued, there was no need to make any further provision of a similar nature for the municipal electoral roll. This argument was rejected as unsound. The Court explained that using the said phrase did not incorporate the whole procedure laid down in the Representation of the People Act, 1950 (XLIII of 1950) into the Ajmer‑Merwar Municipalities Regulation, 1925 (VI of 1925). Neither the Regulation nor the Rules made any reference to such incorporation, and it could not be contended that the municipal roll automatically absorbed those provisions merely because the parliamentary roll served as its basis. The Court further observed that if Rules 7 and 9 were intended to constitute a complete code for finalising the municipal electoral roll, they failed to achieve that purpose. They were either inconsistent with section 30, sub‑section (2) of the Regulation or defective because they did not provide the proper procedure for the steps required to finalise the municipal roll. Consequently, the municipal roll authenticated and published by the Chief Commissioner on 8 August 1955 could not be said to have been prepared in accordance with law, and therefore it could not serve as the basis for elections to the Ajmer Municipal Committee on 9 September 1955 or at any later date. The Court held that it was unnecessary to decide whether, in the event of a conflict between section 30, sub‑section (2) of the Regulation and the Rules made under section 43 of the Regulation, the statutory provision would prevail over the Rules. It was sufficient to conclude that the authenticated municipal roll of 8 August 1955 did not conform to the requirements of section 30, sub‑section (2) and the relevant provisions of the Regulation, and thus could not underpin any valid election. On these grounds, the appeal was dismissed. No order as to costs was made because the respondent had not appeared before the Court.

In the proceedings before the Court, the party who opposed the petition presented its arguments and challenged the relief claimed by the appellant. The opposing party relied upon the record and argued that the basis of the petition was untenable in law. After hearing the submissions, the Court examined the material on record and considered the contentions raised by the opponent. The Court found that none of the points advanced by the opponent created a basis for overturning the earlier finding. Consequently, the Court concluded after careful consideration that the appeal could not succeed because the grounds raised were insufficient to merit reversal of the previous decision. Accordingly, the Court entered a formal order that dismissed the appeal and affirmed the earlier determination without alteration. No further order as to costs was made because the respondent had not taken part in the hearing. The Court also observed that the lack of participation by the respondent meant that it could not be assessed for any indemnity expenses normally awarded to a successful party. In view of these considerations, the final decree of the Court consisted solely of the dismissal of the appeal and no other direction. The judgment therefore concluded the matter, leaving the status of the municipal election process unchanged as previously determined.