1. Ward No. 7 of Bodduvariapalem Panchayat is a constituency reserved for women. The election on 15-6-1970 resulted in the success of the petitioner by the narrowest of margins, i.e., of a single vote. There was a third candidate but she withdraw leaving the filed clear for a straight contest between the petitioner and the first respondent of whom the petitioner is the sister of the 1st respondent's husband. The petitioner's mother ranged herself against her daughter and gave evidence in support of the daughter-in-law's case. Petitioner's election was successfully challenged in a proceeding before the Tribunal on the ground that she had not attained the age of twenty one years and lacked the franchise which is the pre-requisite for seeking election.
2. Before the Tribunal the respondent (the parties will be referred to according to their rank in the writ petition) relied on Ex. A-1, purporting to be an extract from the Register of births as also on the evidence of P. W. 1.
3. In support of the writ petition Mr. Venkata Ramanareddy urged that the tribunal's finding that the petitioner was less than 21 years of age at the material time is perverse or unsupported by evidence. Secondly he submitted that the entry in the register of voters is conclusive and in an election petition it is not competent for the tribunal to inquire into or adjudicate on the validity of the entry in the register.
4. The argument on the first aspect is to this effect. Ex. A-1 is palpably unreliable. The report of the birth was given to the Village Munsiff two days after the child was born; but quite curiously the entry as to the birth mentions are name of the then two days old child. How could this name be entered when the mother (P. W. 1)in this case unequivocally admitted that none of her children was named before the expiry of twenty one days from the date of birth? The very admission of P. W. 1 is sufficient to discredit Ex. A-1 and shows that it is a wholly unreliable piece of evidence. It cannot be held that it relates to the petitioners even if in fact a birth occurred and the entry itself was not a wholesale fabrication. So argues the counsel.
5. The reasoning looks plausible but on a thorough examination the conclusion must be that it is untenable. For a moment, let me assume that the mention in the register of the name of the child is a later interpolation. Even so, the entry in the register that a child was born to P. W. 1 must be upheld as a genuine one.
6. It was made contemporaneously, that is to say, within the time normally taken for reporting the fact to the village officer. It is undeniable that a child was born as disclosed by the entry and on the date mentioned therein. The question does not relate to the petitioner's birth? If there is another child to whose birth it relates, the fast could be conclusively established by evidence. There is no proof of that fact.
7. In her evidence P. W. 1 stated that she gave birth to five sons and two daughters. The first daughter (the second born child) died on the 14th day after birth. There was thus only one surviving daughter the writ petitioner. The suggestion is that the birth extract relates to another daughter Anjamma born two years after the petitioner. But no evidence has been placed before the positive assertion of P. W. 1 on the contrary is that besides the petitioner there is no other daughter and she is 20 years old. There was thus sufficient evidence before the tribunal to justify the finding. It is difficult to perceive how the conclusion of the tribunal could be rejected as perverse or unsupported by evidence. The mention of the name of the child in Ex. A-1 may not have been cogently explained in the light of the admission of P. W. 1. that the child was christened only at the 'Barasala' on the 21st day. This does not militate against the positive testimony of P. w. 1 that the petitioner is the last born among her children and there is no other surviving daughter. No evidence to rebut this version was adduced. The tribunal chose to accept the testimony of P. W. 1 and in doing so did not act perversely.
8. In support of his second contention learned counsel relied on the decision of the Supreme Court in Kabul Singh v. Kundan Singh, : 1SCR845 . The question that arose for determination in that case was whether the vote of one Hari Singh should have been held to be a void vote as his name was included in the electoral roll on April 5, 1968 just two days before the date of election. The dispute related to a Local Authorities Constituency and the successful candidate as per the declared result had secured only one vote more than the rival who closely followed him. The validity of the vote of Hari Singh became the crucial issue and the name of the voter was included in the electoral roll on 5-4-1968, long after the last day fixed for nomination viz., 12-3-1968. Scrutiny of nominations was held on 13-3-1968 and the last date for withdrawal from contest was 16-3-1968. It was after this stage in the process that Hari Singh's name was included. The main contention in the appeal to the Supreme Court related to the true effect of sub-section (3) of Section 23 of Representation of the People Act, 1950 which prohibits the deletion or addition of any name in the electoral roll of a Constituency after the last date for making nomination for an election in that constituency and before the completion of the election.
9. The difference in the facts and the questions calling for determination in the present case is too obvious to require a detailed elucidation. It is sufficient to stress that in the case decided by the Supreme Court the question whether any addition could be made to the electoral roll after the last dated fixed for nomination and before the date fixed for the poll. It was in that context that his Lordship Hegde, J.. speaking for the court, made the observations relied on by counsel for the petitioner. The provisions in Sections 16, 21, 22, 23 and 24 of Representation of the People Act were referred to and then he observed.
'that the entries found in that electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of an election.'
10. .It appears to me that these dicta are now to be understood in the sense in which counsel wants me to construe them, to mean, that in a proceeding concerning the validity of an election it is not open to the parties to establish that a person whose name is found in the electoral roll died before the preparation of the register or did not acquire the qualification a to age or residence. The dictum as to the finality of the electoral roll was made in the context of a plea that an addition to the list was not permissible after the last date fixed for nominations. Can these words be regarded as having an application that extends or beyond their immediate context. I do not think so. The meaning cannot be allowed to be distorted to lead to a result that under no circumstances can the validity of the entry be disproved. For example, is it not permissible to sustain a plea of false personation at the election by proof of the fact that the person whose name is entered in the list died even before the date of the publication of the electoral roll? Or again can it be urged that in a proceeding concerning the validity of the election it is not open to plead or prove that a person whose name appears in the list of voters did not have the qualifications as to residence in a particular area?
11. A Full Bench of this court held in Addigiri Vengamumi v. Chukkalooru Narayanappa, : AIR1970AP337 (FB) that the Election Tribunal has jurisdiction to go into the question whether the voters specific by the election petitioners as under-aged were in fact so. The case related to an election held under the Andhra Pradesh Municipalities Act. The provisions of the Municipalities Act directed that the electoral roll prepared under the Representation of the People Act is to be adopted for elections to Municipal Councils. The qualifications or disqualifications relevant for the preparation of the electoral roll under the Representation of the People Act became applicable for the electoral roll on the basis of which the election to the Municipal Councils were to be held. There was no special provision in the Municipalities Act or in the rules framed thereunder, but the provisions enacted under the Representation of the People Act were deemed to have been adopted under the local Act. Narasimham, J., (as he then was)observed that the finality contemplated by Section 62 of the Representation of the People act is not finality so as to exclude the fundamental incapacity of a voter to vote at an Assembly election and consequently at Municipal Election'. The result was that the Full Bench reached the conclusion that the election of candidate who is below twenty one years is contrary to law and that the election of a person who lacks the requisite qualifications can be called in question under the provisions of the Municipalities Act. Krishnarao, J., observed that the Election Tribunal has got the jurisdiction to decide whether certain voters are under the age of twenty one years, so that if they are found to be under-aged, their votes may be eliminated. According to the learned Judge, such an enquiry is not one concerning the correctness of the entries in the electoral roll but its intention and effect are to determine whether the persons who voted possessed to requisite qualifications as prescribed in the Constitution. Kuppuswamy, J., was of opinion that it is within the competence of the Election Tribunal to go into the question whether a person whose name appears in the electoral roll is not entitled to vote for the reason that he is below twenty one years of age and consequently whether the vote case by him should be disregarded.
12. Kabul Singh's case, : 1SCR845 decided by the Supreme Court and adverted to by me earlier was one of the cases cited before the Full Bench. After quoting the observations of Hegde, J., Narasimham, J., pointed out that the Supreme Court did not decide the point involved in a 'challenge that a voter suffers from a constitutional disability.' The learned Judge further opined that the earlier decision of the Supreme Court in B. M. Ramaswamy v. B. M. Krishnamurthi, : 3SCR479 referred to by Hegde, J., does not bar the jurisdiction of Election Tribunal to go into the question of the constitutional disability of a voter whose name is entered in the electoral roll. With respect, I adopt the observations made by the learned Judge concerning the effect of the two decisions of the Supreme Court.
13. The decision in : 3SCR479 has but a limited effect. The question there was, whether the electoral registration officer did not follow the procedure prescribed for the inclusion of a name in the electoral list. At page 293 the learned Judge has summed up the ratio in Ramaswamy's case : 3SCR479 in these words:---
'This decision brings out succinctly that the non-compliance with the procedure prescribed before including the name of a voter in the electoral roll stands on a different footing as distinct from the inclusion being considered nonest.'
The decision of the Full Bench in the above case, though it related to a case arising under the Municipalities Act, is based on a reasoning which governs the instant case as well. As in the case of the elections held under the District Municipalities Act, in the case of election to Panchayats also. the electoral roll prepared under the Representation of the People Act is adopted. The consequence is that the qualification or disqualification that are prescribed under the Representation of the People act are applicable in the same measure to the electoral list on the basis of which the elections for Gram Panchayats are to be held. Learned counsel for the petitioner was unable to assign any valid ground of distinction. The decision of the Full Bench constitutes a binding precedent which should be applied in the present case.
14. An earlier Full Bench decision of this court in Chirala Goverdhana Reddi v. The Election Tribunal, (1969) 1 Andh WR 52 = (AIR 19790 Andh Pra 56) (FB) was also cited before me. The learned Judges in the earlier. Full Bench case also accepted as valid the position that the Election Tribunal Gram Panchayats Act has jurisdiction to inquire into the question of the age of candidate seeking election and to declare the election as void if such members is below twenty one years of age. In the reference to the Full Bench Gopalrao Ekbote, J., formulated the question. The learned Judge observed that the question was whether the Election Tribunal constituted under the Gram Panchayat Act can enquire into the age of a candidate in order to find out whether he was qualified to stand as a candidate on the date of nomination. Sambasiva Rao, J., speaking for the Full Bench said at page 64:-----
'The age of the candidate is certainly one of such requirements. If he is of less than 21 years of age he does not have the qualification prescribed by the Constitution and the law, which is necessary for him to be registered as a voter. Despite the lack of qualification if he is enrolled, such entry would be unconstitutional and, therefore, null and void.'
The learned Judge proceeded to point out that although as a fact the name of a person who is less that 21 years of age appears in the list, it is non est for all election purposes. The inevitable consequence, according to the learned Judge, is that such a person cannot file his nomination and he cannot be deemed a valid candidate in the election.
15. The observation made in the earlier decision occurred no doubt, in a case decided before the pronouncement of the Supreme Court in : 1SCR845 . But the decision of a later Full Bench of this court affirmed the ratio of the earlier decision and this was done in the light of the observations of the Supreme Court in : 1SCR845 . In view of the two pronouncements by two different Full Benches of this court, it is clear that the contention of the learned counsel for the petitioner has to be rejected. He invited attention to the decisions of the Punjab and Allahabad High Courts in Roop Lal Metha v. Dhan Singhs, (FB), and Ghula, Mohiuddin v. Election Tribunal for Town Area Sakit, : AIR1959All357 (FB). Both the decisions are decisions of Full Benches of the respective courts. The view taken by this court is different and I am bound by the decision of this court. I am also unable to endorse the plea of the counsel that a case is made out for a further examination of the question by a larger Bench.
16. The Writ Petition fails and is accordingly dismissed with costs. Advocates fee Rs. 100/-.
17. Petition dismissed.