Judgement

BHAGWATI, J. : This is an appeal with special leave from the judgement 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.

2. 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 101 1955, he applied for the correction of his father s name in the Parliamentary Electoral roll and on August 16, 1955, he filed the nomination paper. His nomination was, however, rejected on August 17, 1955, 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 18, 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 against the District Magistrate, Ajmer, restraining him from holding the elections and poll to the Ajmer Municipal Committee on September 9, 1955, as notified.

3. 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 R.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 rule-making power conferred upon him, and the elections proposed to be held of Sept. 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.

4. 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, however, approached this Court and obtained special leave under Art. 136 for filing an appeal against the decision of the learned Judicial Commissioner.

5. 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 ex parte