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Addigiri Vengamumi Vs. Chukkalooru Narayanappa and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1204 of 1969
Judge
Reported inAIR1970AP337
ActsAndhra Pradesh Municipalities Act, 1965 - Sections 11
AppellantAddigiri Vengamumi
RespondentChukkalooru Narayanappa and anr.
Appellant AdvocateP. Babula Reddy and ;M.N. Rao, Advs.
Respondent AdvocateP.A. Chowdary and ;B. Rama Rao, Advs.
Excerpt:
election - jurisdiction - section 11 of andhra pradesh municipalities act, 1965 - election for municipal council challenged on ground that certain voters were under-aged - election tribunal ordered inspection of ballot papers - whether election tribunal had jurisdiction to order inspection of ballot papers - held, election tribunal had jurisdiction to decide whether certain voters were under age of 21 years whose votes materially affected results so that their votes may be eliminated. - - 7. narayanappa the defeated candidate, filed an election petition o. if persons who were under-aged had voted, then clearly the result of the election would have been materially affected by non-compliance with the provisions of the act. 26. a scrutiny of the relevant provision leaves me in no doubt.....narasimham, j.1. the writ petition has been referred to the full bench for disposal as raising an important question as to the jurisdiction of an election tribunal constituted under the andhra pradesh municipalities act, 1965 (act vi of 1965) to go into the question whether certain of the votes were cast by voters who were under-aged being less than 21 years of age and for that purpose to order inspection of ballot papers.2. the question has arisen this way; at municipal council, dharmavaram, on 24-9-1967 the petitioner vengamuni, and the 1st respondent narayanappa, w ere the candidates who contested from ward no. 7. the total votes polled in that ward were 680 out of which narayanappa secured 325 votes and the petitioner secured 331 votes, 24 votes having been invalidated. the petitioner.....
Judgment:

Narasimham, J.

1. The writ petition has been referred to the Full Bench for disposal as raising an important question as to the jurisdiction of an Election Tribunal constituted under the Andhra Pradesh Municipalities Act, 1965 (Act VI of 1965) to go into the question whether certain of the votes were cast by voters who were under-aged being less than 21 years of age and for that purpose to order inspection of ballot papers.

2. The question has arisen this way; at Municipal Council, Dharmavaram, on 24-9-1967 the petitioner Vengamuni, and the 1st respondent Narayanappa, w ere the candidates who contested from Ward No. 7. The total votes polled in that ward were 680 out of which Narayanappa secured 325 votes and the petitioner secured 331 votes, 24 votes having been invalidated. The petitioner was duly declared to have been elected to the Municipal Council from Ward No. 7. Narayanappa the defeated candidate, filed an Election Petition O. P. No. 107 of 1967 before the Election Tribunal (the Subordinate Judge, Ananthapur) challenging the petitioner's election on various grounds. At the hearing, however, he pressed only one ground that certain voters were under-aged on the date of election and their names were fraudulently inserted in the Electoral Roll, and even at the time of voting objections were raised before the Polling Officer and the result of the election was affected by reception of such votes.

Narayanappa also filed an application before the Election Tribunal for the scrutiny of the Ballot papers relating to the the 12 persons alleged to have been under-aged. The application was opposed; but the Election Tribunal ordered the inspection of ballot papers. It is against the said order that the petitioner has filled the present writ petition under Article 226 of the Constitution.

3. In support of this Writ Petition, it is alleged in affidavit that the Tribunal has no jurisdiction to go into that question contrary to the decision of a Division Bench of this Court: Ramachandram v. D. Seshayya. (1961) 2 Andh WR 23 which held that the age of an elector could not be gone into in an Election petition. It is therefore alleged that the Election Tribunal acted in excess of its Jurisdiction.

4. Narayanappa filed a Counter-affidavit satiating that the Tribunal acted within its jurisdiction in ordering inspection of the ballot papers. While it was asserted by the election petitioner and denied by the returned candidate that those under-aged had voted, it had become necessary to the Tribunal to decide that point as part of its final decision in the election petition. He relied on a Full Bench decision of this Court in C. Goverdhana Reddy v. Election Tribunal, Bapatla, (1969) 1 Andh WR 52 at p. 57= (AIR 1970 Andh Pra 56 at p. 57 (FB))as deciding the question that the entry of a minor's name (minor in the sense of under the age of 21 years) in an electoral roll was null and void and non est being repugnant to Art, 326 of the Constitution.

5. The Writ Petition came up before a Division Bench of this Court consisting of the Honourable the Chief Justice and Ramachandra Raju, J. who have referred the matter for decision by a Full Bench.

6. The learned counsel have argued the matter elaborately with reference to specific provisions of the relevant enactments and the Constitution and cited to us cases both for and against.

7. At the conclusion of the hearing, we have agreed that the Election Tribunal has jurisdiction to pass the order which it did, with reference to the allegation of the election Petitioner which he undertook to prove that certain persons who were under-aged had voted and that such voting by people who were under-aged had materially affected the result of the election, and each of us proposed to give our reasons in separate judgments.

8. I would presently consider the question with reference to the relevant provisions of the concerned enactments and examine the contentions for and against, discussing the case law on this matter.

9. Section 11 (1) of the Andhra Pradesh Municipalities Act, 1965 (Act VI of 1965) to be referred to hereinafter as the Municipal Act, is in these terms:

11. (1) Every person whose name is included in such part of the electoral roll for any Assembly Constituency as relates to the municipality or any portion thereof, shall be entitled to be included in the electoral roll for the municipality prepared for the purposes of this Act, and no other person shall be entitled to be included in such roll.

* * * '11. (2) As soon as may be, after the electoral roll for the Assembly Constituencies which consist of or comprise, the municipality or any portion thereof, have been published, revised or amended in pursuance of the Representation of the People Act, 1950 (Central Act 43 of 1950), any person authorised by the election authority in this behalf, shall publish insuch manner as the Government may direct, the portions of the alterations therein as the electoral roll for the municipality or as alterations to such roll, as the case may be:

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'11. (5) The municipality published under sub-section (2), as revised by any alterations thereto subsequently published under that sub-section or under sub-section (4), shall remain in force until the publication of a fresh electoral roll for the municipality under sub-section (2).

'11. (6) Every person whose name appears in the electoral roll for the municipality as so revised, shall, so long as it remains in force, be entitles, subject to the provisions of this Act, to vote at an election: and no person whose name does not appear in such roll shall vote at an election.

'11. (7) Notwithstanding anything in this section, the election authority may after making such enquiry as he thinks fit, either suo motu or on an application correct any clerical error in the electoral roll for the municipality or the alterations thereof as published.

EXPLAINATION:- In this section the expression 'Assembly Constituency provided by law for the purpose of election to the Andhra Pradesh Legislative Assembly.

12. Notwithstanding anything in sub-section (6) of Section 11, a person who is of unsound mind and stands so declared of unsound mind and stands so declared by a competent court shall not be entitled to vote at any election to a council.

13. A person shall be qualified for election as a councilor only if his name appears on the electoral roll for the municipality'.

10. I pause now to state what these sections in substance say. The electoral roll for the Municipal elections is the same as that prepared for the elections to the Andhra Pradesh for the elections to the Andhra Pradesh Legislative Assembly in so far as it comprises the area of the Municipality concerned, and every person who appears in the electoral roll so published shall so long as it remains in force, be entitled to vote at an election. The election authority may after making such enquiry as it thinks fit, correct any clerical error in the electoral roll for the municipality. A person of unsound mind and so declared by a competent court shall not be entitled to vote at any election to a council. A person who is in the electoral roll for the Municipality could also stand for the council. In other words, a person competent to vote at an election for the Legislative Assembly of the State is entitled to vote at an election to the Municipal Council. The Municipal Act itself does not enact any provision as to the qualifications as a voter at an election to the State Legislative Assembly. This necessarily takes me on to the qualifications of voters under the Representation of the People Act.

11. There are two Acts of Parliament: The Representation of the People Act, 1950 and the Representation of the People Act, 1951 which have to be read together as forming complete Code. The Representation of the People Act, 1950 will hereafter be referred to for convenience as the R. P. Act, 1951 as R. P. Act of 1951.

12. Section 2(1)(e) of the R. P. Act of 1951 defined 'elector' thus:

'2. (1) In this Act, unless the context otherwise requires, (e) 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)'.

13-21. The material provisions of the R. P. Act of 1950 are these:

Section 15 deals with Electoral roll for every constituency which says that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the Act under the superintendence direction and control of the Election Commission.

Section 16 sets out the disqualifications for registration in an electoral roll saying as under:

'(1) A person shall be disqualified for registration in an electoral roll if he-

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under three provisions of any law relating to corrupt practices and other offences in connection with the elections.

(2) The name of any person who becomes so disqualified after registration shall forwith be struck off the electoral roll in which it is included:

(proviso not relevant)

Section 19 sets out the conditions of registration thus:-

'Subject to the foregoing provisions of this Part, every person who

(a) is not less than twenty-one years of age on the qualifying date and

(b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency'.

The term 'qualifying date' is defined in section 14, and the meaning of 'ordinarily resident' is stated in section 20. It is not necessary to extract those definitions here.

Section 30 debars the jurisdiction of civil courts and sets out:

'No civil court shall have jurisdiction :

(a) to entertain or adjudicate upon any question whether any persons or is not entitled to be registered in an electoral roll for a constituency or

(b) to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll'.

I would now examine the substance of these provisions.

As a pre-condition for r registration in the electoral roll for the Assembly constituency, a person shall not be less than 21 years of age on the qualifying date and he shall not have the disqualifications enacted under section 16. (I would as far as possible confine the discussion to the point at issue). Such person who is registered in the electoral roll shall be entitled to vote in that constituency, provided of course he has no disqualifications, and the Court's jurisdiction is barred so far as it relates to a question whether any person is or is not entitled to be registered in an electoral roll for a constituency.

We may also see here section 100 of the R. P. Act 1951. Section 100 inter alia provides thus:

'......... if the High Court is of opinion-

(d) that the result of the election in so far asit concerns a returned candidate has been materially affected

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(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or of this Act or of any rules or orders made under this Act.

the High Court shall declare the election of the returned candidate to be void'.

I would now refer to the relevant Articles of the Constitution:

'Art. 326. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than Twenty-one years of age on such date as maybe fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such elections.

'327. Subject to the provisions of this Constitution. Parliament may from time to time by law make provision with respect top all matters relating to, or in connection with election to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

'328. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses'.

22. A reading of these three Articles of the Constitution makes it abundantly clear that the Constitution is transcendent law, and any Act of the Parliament or of the State Legislature is subject to the provisions thereof.

23. Coming to the point, the electoral rolls to the House of People or to the Legislature of a State can only be made subject to the provisions of the Constitution. What concerns us in this petition is that a person shall be registered as a voter at any such election who is not less than 21 years of age on the relevant date and is not otherwise disqualified under the Constitution or any other law made by the appropriate Legislature. It is abundantly clear therefore that only a person who is not less than 21 years of age on the qualifying date could be registered as a voter at an election to the State Assembly and that is a condition of registration under the R. P. Act of 1951 the Election Tribunal, viz., the High Court could declare an election to be void if the High Court is of opinion that the result of an election has been materially affected by any non-compliance with the provisions of the Constitution or the reception of any vote which is void.

Now, by adopting the voters of the Assembly as the voters of the Municipal Council, what legitimately follows is that a voter could be registered only if he is not less than 21 years of age on the qualifying date. In the present enquiry, I am not dealing with other matters which also affect the right to vote of a person registered as a voter. Such a disqualification of being under-aged and as such incompetent to vote could be enquired into by the High Court as a ground for declaring the election to be void.

24. Now, let us consult the statutory rules made in exercise of the powers conferred by clause (b) of sub-section (2) of section 326 of the Municipal Act for decision of the election disputes under the Act. Rule 10 (c) provides inter alia that if in the opinion of the Election Tribunal the result of ht election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made thereunder the election of such returned candidate shall be void. What does this provision mean in the present context? The Municipal Act adopted the voters at an election for the Legislative Assembly as voters at an election for the Municipal Council. The voters at an election for the State Assembly shall not be less than 21 years of age. It necessarily means that by adopting the electoral rolls for the voters at an Assembly election, the voters at a Municipal Council election shall not be under 21 years of age on the qualifying date. If persons who were under-aged had voted, then clearly the result of the election would have been materially affected by non-compliance with the provisions of the Act.

So, there cannot be any doubt that a reading of these provisions yields the result that the Election Tribunal under the rules framed under the Municipal Act could enquire into the allegation of under-age of specified voters. But, Sri Babul Reddy's contentions that under S. 62(1) of the R. P. Act, 1951, every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency, except as otherwise expressly provided by that Act and that under section 62(2) no person shall vote at an election in any constituency shall vote at an election in any constituency if he subject to any of the disqualifications referred to in section 16 of the R. P. Act, 1950, which does not speak of under-age, i.e., less than 21 years of age on the qualifying date being a disqualification. He would say that a finality is attached to the electoral roll and that under section 30 of the R. P. Act, 1950 the jurisdiction of the civil courts is bared to adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency. He would therefore say that such an enquiry is barred and further no such qualifications or disqualifications are contained in the Municipal Act.

25. The contentions to the contrary addressed by Sri Chowdary are that under Art, 326 of the Constitution election shall be on the basis of adult suffrage, that is to say, every person shall be not less than 21 years of age on the qualifying date and inclusion of any person under that age in any electoral roll would be against the express mandate of the Constitution, and mere registry of such a person gives him no right to vote and such an entry in the electoral roll shall be treated as non est and void and section 30 of the R. P. Act, 1950 does not take away the jurisdiction conferred under Section 100 of the R. P. Act, 1951 to decide the question of reception of any vote which is void or non-compliance with the provisions of the Constitution as materially affecting the result of the election.

26. A scrutiny of the relevant provision leaves me in no doubt that a person who is under-aged according to the Constitution cannot be a voter at an Assembly election and at the Municipal election as well as the Municipal Act adopted the electoral rolls at an Assembly election. The contention of Sri Babul Reddy results in a manifest anomaly that in spite of the express interdiction by the Constitution which is transcendent law, a person who is under-aged although he cannot vote at an Assembly election, could still be competent to a vote at a Municipal election. It is against the express provisions of the Municipal Act. A constitutional disability to be a voter can be reissued and decided under section 100 of the R. P. Act, 1951. It cannot be said that section 30 of the R. P. Act, 1950 would stand in the way of such a decision under section 100 of the same Act. The two provisions have to be read harmoniously and certainly not as inconsistent with each other.

It is not necessary that qualifications or disqualifications should be enacted under the Municipal Act as well. They are the same as enacted under the R. P. Act of 1950, as by adopting the electoral roll of the voters at an Assembly election, it had adopted their qualifications and disqualifications as well. It is not also necessary that the Rules under the Municipal Act should expressly adopt the words of section 100 of the R. P. Act, 1951, when it is clear that the Municipal Act had adopted the electoral rolls at an Assembly election with the result that one who cannot be a voter for an Assembly cannot vote at the Municipal Election. The finality contemplated by section 62 of the R. P. Act, 1951, is not finality so as to exclude the fundamental incapacity of a voter to vote at an Assembly election and consequently at a Municipal election. If in spite of the incapacity to vote a person is registered as a voter, does it mean that by an entry in the register a right to vote could be conferred contrary to the mandate of the Constitution. This could never have been nor could be. The finality of the registry should be confined to the authorities who are to prepare the electoral rolls and cannot operate as a bar to the authority expressly constituted for election disputes to go into the question of constitutional disabilities of voters.

27. I should think therefore that Sri Baubul Reddy's contentions would lead to manifest anomalies and unharmonious construction of the provisions of the same enactment: Section 30 of the R. P. Act of 1950 and section 100 of the R. P. Act 1951, and above all put the registry above the Constitutionwhich in clear terms. I fell, cannot be done. It is needless to repeat that the Constitution gives the organic or fundamental law with reference to which the validity of laws enacted by the Legislature is to be tested, and a law enacted by the Legislature cannot transgress or violative the provisions of the fundamental law. I cannot possibly accept his contentions on an examination and interpretation of the relevant provisions.

28. I would now refer to the case law which yields the same conclusion predominantly. I may conveniently commence these references with Durga Shanker Metha v. Raghuraj Singh, : [1955]1SCR267 . That was a case where the election of one Vasant Rao to a reserved seat in the Lakhnadon Legislative Assembly constituency in Madhya Pradesh was called in question before the Election Tribunal. The g round on which his election was assailed was that Vasant Rao who was declared duly elected to the reserved seat in the said constituency was at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Art, 173 of the Constitution. The allegation was found to be true by the Tribunal and the election was pronounced to be void as amounting to an improper acceptance of nomination within the meaning of S. 100(1)(s) of the R. P. Act of 1951. The propriety of the decision was challenged before the Supreme Court. The Supreme Court held that Vasant Rao's election has to be declared void under section 100(2)(c) of the R. P. Act of 1951, as Vasant Rao was constitutionally incapable of being returned as a member being under 25 years of age and consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Art, 173 of the Constitution.

Referring to the constitutional incapacity as rendering his election void, the Court expressed thus at page 278 (of SCR) = (at p. 524 of AIR):

'...........the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may on evidence placed before it, come to finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualifications of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer........The expression 'non-compliance' with the provisions of the Constitution is in our opinion sufficiently wide to cover such scales where the question is not one of improper acceptance or rejection of the nomination by the returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English Law, after the passing of the Ballot Act of 1872, is substantially the same as has been explained in the case of Stowe v. Jolliffe, (1874) 9 Court of Common Pleas 734. The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament'.

Earlier, it was expressed that the electoral roll is conclusive as to the qualification of the elector except where disqualification is expressly alleged or proved.

29. In the said English case, (1874) 9 C. P. 734, Lord Coleridge with whom the other two two Judges agarteed, construed persons prohibited from voting by any state or by the common law of Parliament as meaning.

'persons who from some inherent or is time irremovable quality in themselves have not either by prohibition of statutes or at common law, sauts of Parliamentary electors'.

30. Radhakrishna Murthy v. Subordinate Judge, Bapatla, (1960) 2 Andh WR 108 was a case of election to the Chirala Municipality under the District Municipalities Act, 1921 (Act V of 1920). The petitioner was declared elected. Subsequently his election was challenged by in election petition before the Election Commissioner (Subordinate Judge, Bapada)alleging inter alia that the petitioner was ineligible to stand as a candidate being under 21 years of age. The Election Commissioner on the material placed before him reached the conclusion that the petitioner was less than 21 years of age and as such was not competent to stand as a candidate; with the reset he invalidated the election of the petitioner. The aggrieved petitioner moved the High Court filing a petition under Art. 226 of the Constitution. The contention before the High Court was that the disqualification of a candidate could not form the ground of attack in an election petition field before the Subordinate Judge. The said contention was rejected observing thus:

After referring to Section 19 of the R. P. Act, 1950 and section 44 of the old Municipal Act, corresponding to S. 11(1) of the present Act, corresponding S. 11 (1) of the present Act, it was said: 'A combined reading of these two sections established that it is only a person who is at least twenty-one years old that could get his name entered in the Electoral Roll and be qualified to seek election to the Municipal council as a candidate. Any person who is below twenty years of age is not competent to stand as a candidate. The election of a candidate who is below twenty-one year is therefore contrary to law. It, therefore, amounts to 'non-compliance with the provisions of the Act'. It follows that the election of a person who lacks there requisite qualifications can be called in question under rule 10 (c). Therefore, an election petition is open to a person entitled to launch it to raised the ground of want of qualification'.

They referred with approval to a Full Bench ruling of the Madras High Court in Selvarangaraju v. Doraiswami Mudaliar 57 Mad LJ 241 = ILR 52 Mad 732 = (AIR 1929 Mad 727) (FB).

31. A reference may be made to 57 Mad LJ 241 = ILR 52 Mad 732 = (AIR 1929 Mad 727) (FB). The Full Bench held that a disqualification under S. 49 of the Madras District Municipalities Act, 1920, could be made a ground for petition before an Election court impugning the election and there was nothing in section 51 to preclude such a course being taken.

32. Narayan Bikram Shah. Kedar Pandey. : AIR1964Pat417 is a case of an election petition against one Narayan Bikram Shah, a candidate returned to the Bihar Legislative Assembly from Ramnagar Assembly constituency on the allegation that he was not qualified to be a candidate as he was not a citizen of India and Article 173 of the Constitution stood in his way. A contention was raised that it must be deemed to have been decided at the time of registration in the electoral roll that he was a citizen of India and the Election Tribunal could not now go into that question. The said contention did not find favour with the Bench and was countered with these observations:

'The opinion to be given by the Tribunal under section 100(1)(a) of Act 43 of 1951 cannot be hampered by even an express finding given under Rules 20 and 23 of the Registration of Electors Rules, 1960. The finality contemplated under Rule 23 sub-rule (4) of the Rules has reference to the proceedings under the Rules. It cannot possibly debar the Tribunal from considering the question whether a returned candidate was disqualified to be chosen to fill a seat under the Constitution or under Act 43 of 1951, on the date of his election'.

Sri Babul Reddy sought to explain this decision with reference to section 62(2) of the R. P. Act, 1951, but it is clear that the Judges put it differently as a question of disqualification under the Constitution.

33. P. Kunhiraman v. R. Krishna Iyer : AIR1962Ker190 is a Full Bench case of the Kerala High Court which held that in the case of a person whose name appears in the electoral roll and who has exercised his vote, the election Tribunal can go into the question whether or not he had attained the age of 21 on the qualifying date, and, on the finding that he had not, exclude his vote from the count. The learned Judges cited with approval Jujhar Singh v. Bhairon Lall, (1952) 7 Ele LR 457 and Ramdayal Ayodya Prasad v. K. R. Patil, (1959) 18 Ele LR 378.

34. The same view was held by a Division Bench of the High Court in S. V. Viswanathan v. G. P. Rangaswamy, : AIR1967Mad244 . That was also a case of the election of a successful candidate having been challenged on the ground that one of the voters was under-aged and was therefore incompetent to vote, and the ground was upheld. The learned Judges held that the election Tribunal had jurisdiction to hold that the inclusion of the name of the under-aged person was nullity.

35. In B. M. Ramaswamy v. B. M. Krishnamurthy, : [1963]3SCR479 the Supreme Court considered the only substantial contention raised in the appeal that the High Court went wrong in considering the question of the legality of the inclusion of the appellant's name in the electoral roll of the Legislative Assembly, as under Section 30 of the R. P. Act, 1950 the jurisdiction of civil courts to question the legality of an action taken, by, or under the authority of, the Electoral Registration Officer, was barred. It was common case that the name of the appellant was included in the electoral roll of the Mysore Legislative Assembly before the date prescribed for filing of nomination papers. But it was said that the electoral Registration Officer did not follow the procedure prescribed in that behalf. The learned Judges held that there was no provision in the Act which enabled the High Court to set aside the election on the ground that thought the name of a candidate was in the list, it had been included therein illegally.

Explaining section 30 of the R. P. Act, 1950, it was said that the terms of the section were clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal, could not be questioned in a civil court; but it could be rectified only in the manner prescribed by law, i.e., by preferring an appeal under R. 24 of the Rules, or by resorting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. It was said that the non-compliance with the procedure prescribed did not affect his jurisdiction though it might render his action illegal. Such non-compliance could not make the officer's act non est, though his order might be liable to be set aside in appeal or by resorting to any other appropriate remedy. The decision brings out succinctly that the non-compliance with the procedure prescribed before including the name of a voter in the electoral roll roll stands on a different footing as distinct from the inclusion being considered non est.

36. We have the Full Bench case of this Court: : AIR1970AP56 . There the question was considered whether the election Tribunal constituted under the Andhra Pradesh Gram Panchayat Act could 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 his nomination. There was review of the case law bearing on this question and eventually the Full Bench held that the mere entry in an electoral roll was not final or conclusive in regard to the age of the candidate and it was open to the Electoral Tribunal to enquire, in an election petition into the age of the candidate and to find out whether he was duly qualified to seek the election. If a person did not compete the age of 21 years, when his name was registered in the electoral he suffered from a constitutional disability and therefore the very entry of his name in the electoral roll was null and void, and was non est. When such was the case the Election Tribunal could set aside the election, as the election had been vitiated by non-compliance with the Act and the rules made thereunder.

37. All these decisions support the conclusion which I have arrived at on an interpretation of the relevant provisions of the Acts concerned and provisions of the Acts concerned and the provisions of the Constitution.

38. Sri Babul Reddy relied on certain decisions which had taken the contrary view, one of which is the Division Bench Ruling: (1961) 2 Andh WR 23. In the said case the election of a candidate returned at the Panchayat elections Turiapadu Village on 7-10-1959 was questioned on the ground that two of the voters who recorded their in favour of the returned candidate were minors and that one of the voters was a fictitious one. The Election Commissioner accepted the defects alleged and set aside the election whereupon a petition was filed by the candidate returned under Art. 226 of the Constitution of India for a certiorari quashing the said decision of the Election Commissioner. The Division Bench accepted the contention in support of the returned candidate that the electoral roll published for the panchayat was conclusive and final as to the qualifications of the voters entered therein and the election could not be impeached on the ground that some of the voters were minors. It was observed in the course of the judgment that the electoral roll for the Assembly Constituency furnished the basis for the preparation of the voters' list for panchayat elections and that every person whose name was shown in the Electoral roll could exercise his vote. Therefore it was said that even assuming that the voters are minors, it did not vitiate the election. There was reference to : [1955]1SCR267 as supporting that conclusion. The earlier case of ((1960) 2 Andh WR 308) was referred to and distinguished as not affording any parallel to the instant case.

39. It is apparent to me that : [1955]1SCR267 does not support that decision; nor is the legal position different from that discussed in (1960) 2 Andh WR 308. I have referred to both these cases as authority for the contrary position. I am not therefore persuaded that this decision lays down the correct law.

40. Sudarshan Reddy v. District Collector; Warangal : AIR1964AP421 was a petition under Art. 226 of the Constitution for the issued of a writ of mandamus directing the respondents not to give effect to the election held on 26-4-1961 for the Municipality of Warangal. Respondents 3 to 36 were declared from various constituencies. The petitioners, who were either the tax-payers or the voters residing in the Municipal area of Warangal, field the petition questioning the validity of the election on the ground that some of them were holding offices of profit under Municipality and as such they were disqualified, that one of them was the member and chairman of the Market Committee appointed under the Hyderabad Agriculture Market Act and was therefore holding an office of profit under the local authority and that the electoral rolls were not finalised and there were a number of persons whose names were omitted.

Overruling these contentions, the Bench observed thus:

'The Election Tribunal, or for that matter the High Court in Writ Petitions have no jurisdiction to enquire whether all persons qualified to vote were entered in the rolls. The jurisdiction to prepare the electoral rolls is vested in certain authorities under the Act and the Rules referred to above and the Rules gave finality to the decision of those authorities. It would be, therefore, futile to challenge the validity of the election on the ground that some persons qualified to vote were not included in the electoral rolls......Some names would always be found to be missing or incorrectly entered. It is too much to except that such electoral rolls would be final in the sense that every personentitled to vote is entered in it accurately'.

The case obviously does not relate to a constitutional disability of a voter to vote and the jurisdiction of an Election Tribunal to go into it. The facts were different and the law stated there was with reference to those facts.

41. In Roop Lal Metha V. Dhan Singh, , a Full Bench of the Court answered in the negative the question referred to it:

'Whether in the election petition made to the High Court under section 80 read with section 80-A of the Representation of the People Act No. 43 of 1951 as amended by he Representation of the People (Amendment) Act 1966, some of the votes case were open to challenge under Section 100(1)(d)(iii) and (iv) of the Act on the ground that the persons so voting at the election were below the age of 21 years on the qualifying date'.

The ratio behind the said decision was that such an enquiry would render futile and indeed meaningless the elaborate provisions in the 1950 Act for registration of names on the electoral rolls, for their revision and for correction of entries in them, and further the entire process of the preparation of electoral rolls which is a preliminary to the conduct of elections, would thereby become open for scrutiny in the election petition.

The Court observed (in para 10 of the reported judgment) that that surely could not have been the intention of the Constitution makers or of the Parliament. Referring to Art. 326 of the Constitution, the learned Judges took the view that the question as to the manner in which the vote actually cast at the poll by any person, who was registered as a voter, was to be challenged was left by the Constitution as a matter legislation of the State under Article 328. With respect to the reasoning adopted. I find myself unable to agree with ratio of the decision in that case.

42. In Pandharinath Gyanoba v. Manikrao Shamrao, AIR 1969 Mys 84 it was held following : [1963]3SCR479 that the correctness or legality of the electoral roll could not be gone into in an election petition. This does not render any assistance to the learned counsel.

43. Mahmadhusain Kurbanhusein v. Onali Fidali, : AIR1969Guj334 is a decision of a single Judge that the Election Tribunal has no jurisdiction to permit evidence being led for determining the question whether a voter is below the age of 21 years and therefore disentitled to vote and that the electoral roll was conclusive evidence of his right to vote. This was said of an election to the Gujarat Municipality. The for legislation of the Parliament under Art. 327 and in the absence of any legislation of the Parliament by the learned Judge adopted the principle of the decision of (FB) which has already been considered by me and with respect I could not adopt the said reasoning.

44. An unreported decision of the Supreme Court delivered on 13-8-1969 in Kabul Singh v. Kundan Singh, Civil Appeal No. 1359 of 1969 = (Since reported in : [1970]1SCR845 ) appearing in blue print was relied on where at an election to the Punjab Legislative Council, the vote of one Tarsen Singh was questioned as invalid as he had taken up Government service subsequent to the inclusion of his name in the electoral roll and so became disqualified to be a member of any local board and so could not vote. The said contention was repelled and the pertinent observations may be appropriately read here. After referring to S. 62 of R. P. Act, 1951 and section 16 of the R. P. Act, 1950, it was observed thus:

'It is not the case of the appellant that Tarsen Singh had incurred any of the disqualifications mentioned therein (the reference is to section 16(1) of the law in the Act, 1950). No other provision of law in the Act or in any other law was brought to our notice disqualifying him from exercising his vote. The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of S. 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (S. 16), revision of the rolls (S. 21), correction of entries in the electoral rolls (S. 22), inclusion of the names in the electoral rolls (S. 23) appeals against orders passed by the concerned authorities under Ss. 22 and 23 (S. 24). Sections 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the 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 any election. In : [1963]3SCR479 this court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election'.

45. The observations make it very clear that this is not a case of challenge that a voter suffers from a constitutional disability. I have referred to : [1963]3SCR479 to the extent necessary for purposes of this petition. There is nothing in the said decision which I can accept as barring the jurisdiction of the Election Tribunal to go into the question of the constitutional disability of a voter entered in the Electoral rolls.

46. I find myself unable to accept the ratio on which the cases cited by Sri Babul Reddy rested the conclusion to the contrary.

47. In my considered view, the election Tribunal has jurisdiction to go into the question whether the voters specified by the election petitioner as under-aged were in fact so and for that purpose order inspection of ballot papers and proceed in accordance with his finding to dispose of the election petition according to law.

Krishnarao, J.

48. This writ petition is placed before a Full Bench for disposal in pursuance of an order of reference made by Jaganmohan Reddy, C. J. and Rama Chandra Raju, J. under the following circumstances:

49. The petitioner herein was declared as Municipal Councillor for Ward No. VII, Dharmavaram Municipality having secured a majority of 6 votes over his rival candidates the first respondent herein, at the election held on 24-9-1967. Aggrieved by the result of the election, the first respondent filed an Election petition O. P. No. 107 of 1967 on 29-9-1967 before the election tribunal (Subordinate Judge, Anantapur) to declare the election as void alleging various grounds. Ultimately only one ground was pressed in support of the election petition, namely, that 12 votes were improperly received at the election as the said voters were below the age of 21 years and were not competent to vote. The serial numbers of the said voters were furnished and it appears that evidence was also let in on both sides regarding their age at the relevant date.

At that stage, the first respondent herein filed an application I. A. 290 of 1968 before the tribunal for inspection of the ballot papers in order to find out whether and if so how man of the is disputed votes were cast in favour of the successful candidate. The Tribunal allowed the application for inspection by its order dated 2-4-1969. Aggrieved by the said order, the petitioner filed the above writ petition challenging the jurisdiction of the tribunal to go into the question of the correctness of the entries in the electoral roll with respect to the age of the voters. So far as the power of the tribunal to direct an inspection of the ballot box is concerned there is no dispute. But as the above question of jurisdiction was argued before the tribunal when the application for inspection came up for orders, the tribunal expressed its opinion following the observations of a Full Bench decision of this court in : AIR1970AP56 (FB) that it is open to he tribunal to go into the said question. The learned counsel for the petitioner contended that the Tribunal ought to have followed a direct decision of this Court in (1961) 2 Andh WR 23 which was not expressly overruled in the said Full Bench decision.

When this writ petition originally came up for hearing before a Division Bench consisting of Jaganmohan Reddy C. J. and Ramachandra Raju, J. it was argued that the correctness of the decision (1961) 2 Andh WR 23 should be considered by another Full Bench as the said question was specifically left open in the Full Bench decision : AIR1970AP56 supra. It is stated that the respondent's learned counsel raised an objection that this Court is not bound to interfere at this stage under Article 226 of the Constitution even before the Tribunal has given its findings regarding the age of the voters in question. But as the tribunal gave its decision on the question of its jurisdiction, it is submitted by the petitioner's learned counsel that this court may go into the said question even at this stage as in any event it has to be gone into when the matter is brought up before this court on the final disposal of the election petition by the tribunal. Normally this court would have been reluctant to go into these questions at this interlocutory stage but for the fact that Division Bench of this court expressed the desirability of the question being considered by a Full Bench.

50-57. The contention raised on behalf of the petitioner is that the entries in the electoral roll have become final and that the election tribunal in dealing with an application to declare the election void, has no jurisdiction to go into the correctness of the entry regarding the age of a voter as noted in the electoral roll. On the other hand, it is urged on behalf of the first respondent that a person under the age 21 years is not entitled to vote at all as per the provisions of Article 326 of that Constitution of India and that though the name of such a person is entered in the electoral rolls, the entry is a nullity and has no force under law and that therefore it is perfectly open to be tribunal to entertain the plea that the vote exercised by such a person is void and that if the factum about the age is dispute, the tribunal is bound to decide the said question of fact in dealing with a petition to set aside the election. The petitioner therefore argued on the footing that even if the said persons are below the requisite age of 21 years, the said question cannot be gone into and that their ballot papers should be regarded as valid in law.

In order to appreciate this point of controversy, it is necessary to refer to the relevant provisions of the law and the decisions of this court which have given reissue to the above reference to the Full Bench.

Provisions of the A. P. Municipalities Act (Act VI of 1965).

Section 11 (1), Every person whose name is included in such part of the electoral roll for any assembly constituency as relates to the municipality or any portion thereof, shall be entitled to be included in the electoral roll for the municipality prepared for the purposes of this Act, and no other person shall be entitled to be included in such roll

Explanations I & II.......XXX XXX

(2) As soon as may be after the electoral rolls for the Assembly constituencies which consist of or, comprise, the municipality or any portion thereof, have been published revised or amended in pursuance of the Representation of the People Act, 1950 (Central Act 43 of 1950), any person authorised by the election authority in this behalf, shall publish in such manner as the Government may direct, the portions of the said rolls which relate therein as the electoral roll for the municipality or as alterations to such roll, as the case may be:

Provided that any alterations made to the relevant portions of the Assembly electoral roll within a period of thirty days prior to the date fixed for the poll for ordinary, or casual elections to the council, shall not be published alterations to the electoral roll for the municipality, until after the said elections are held.

(3) xx xx xx xx

(4) Whether the electoral roll for a municipality or any alterations thereto have been published under sub-section (2) the municipality is divided into wards for the first time or the division of the municipality into wards is altered or the limits of the municipality are varied, the election authority shall, as soon as may be, after such division or alteration or variation, as the case may be, in order to give effect to the division of the Municipality into wards or to the alteration of the words, or to the variation of the limits as the case may be authorise a re-arrangement and republication of the electoral roll for the municipality or any part of such roll, in such manner as the Government may direct.

(5) xx xx xx

(6) Every person whose name appears in the electoral roll for the municipality as so revised, shall so long as it remains in force be entitled, subject to the provisions of this Act, to vote at an election; and no person whose name does not appear in such roll shall vote at an election.

(7) Notwithstandaing anything in this section the election authority may after making such enquiry as he thinks fit, either suo motu or on an application correct any clerical error in the electoral roll for the municipality or the alterations thereof as published.

Explanation:- In this section, the expression 'Assembly constituency' shall mean a constituency provided by law for the purpose of elections to the Andhra Pradesh Legislative Assembly.

Section 12. Notwithstanding anything in sub-section (6) of section 11, a person who is of unsound mind and stands so declared by a competent court shall not be entitled to vote at any election to a Council'

The Andhra Pradesh Municipal Councils (Conduct of Elections Rules, 1965) Rule 3. In these rules, unless.........

(b) 'Act' means the Andhra Pradesh Municipalities Act, 1965.

(c) 'Elector' in relation to an election to any Municipal Council means any person entitled to vote at the election of a councillor to the Municipality.

(d) xx xx

(e) xx xx

(f) 'Electoral Roll' means the electoral roll prepared and published under section 11 (2) of the Act.

Under rule 55, the Election Officer is given the power to reject a ballot paper on certain grounds which relate to formal defects as regards the entries to be made in the ballot paper and the decision of the Election Officer as to the validity of a ballot paper is said to be final subject only to reversal on an election petition.

Rules for decision of the Election disputes:

Rule 10. If in the opinion of the Election Tribunal

(a) xx xx xx

(b) xx xx xx

(c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper perception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made thereunder;

the election of such returned candidate shall be void;

Proviso omitted.

The Representation of the People Act, 1950 (Act 43 of 1950):-

Section 14, Definitions - In this part, unless the context otherwise requires:

(a) 'Constituency' means an Assembly constituency;

(b) 'qualifying date' in relation to the preparation or revision of every electoral roll under this part, means the Ist day of January of the year in which it is so prepared or revised.

15. Electoral Roll for every constituency. For every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of this Act under the superintendence, direction and control of the Election commission.

16. Disqualification for registration in an electoral roll. - (1) A person shall be disqualified for registration in an electoral roll if he-

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections

(2) The name of any person who becomes so disqualified after registration shall forwith be struck off the electoral roll in which it is included

Provided xx xx

19. Conditions of registrations - Subject to the foregoing provisions of this Part, every person who -

(a) is not less than twenty-one years of age on the qualifying date and

(b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. Section 20 defines the expression 'ordinarily resident'.

Section 21 lays down the procedure for preparation and revision of electoral rolls.

Section 22. Correction of entries in electoral Rolls - If the electoral registration officer for an constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency:

(a) is erroneous or defective in any particular;

(b) should be transposed to another place in the roll on the ground that the person concerned gas changed his place of ordinary residence within the constituency, or

(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll.

the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf amend, transpose or delete the entry:

Provided x x x

Section 23 enables persons to get their names included in the electoral roll if their names are not already included. Under Section 24 an appeal is provided to the Chief Electoral Officer against an order of the electoral registration officer under section 22 and 23.

Section 30. Jurisdiction civil courts barred:

No Civil shall have jurisdiction:

(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or

(b) to question the legality of any action taken by or under the authority of an electoral registration, or of any decision given by any authority appointed under this Act for the revision of any such roll.

The Representation of the People Act. 1951.

Section 100. Grounds for declaring election to be void.

(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion.

(a) xx xx

(b) xx xx

(c) xx xx

(d) that the result of the election in so far as it concerns a returned candidate, has been materially affected.

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

The Registration of Electors Rules, 1960.

Rules 10 to 19 provide for publication of electoral rolls and the procedure for preferring objections and for the hearing of such objections, Rule 20 provides that the registration officer shall hold a summary enquiry into every claim or objections as to the entries in the electoral rolls. Rules 23 provides for appeals from orders and every decision of the appellate officer is declared final.

Provisions of the Constitution of India......

Article 325 declares that no person shall be in eligible to be included in anelectoral roll on grounds of religion race, caste or sex or any one of them.

Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage:

The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is not less is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by he appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election

Article 327. power of Parliament to make provision with respect to Elections to Legislatures:- Subject to the provisions of this Constitution, Parliament may form time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of the Legislature or a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

58. The effect of the above provisions of law may be summed up as follows: Persons under the age of 21 years are not entitled to any franchise Persons who are not citizens of India (as defined in Article 5 of the Constitution) are also not entitled to any franchie. Persons above the age 21 and who are citizens of India are not disentitled from exercising their franchise on the ground of religion or race or caste or sex. But persons though entitled to a right to vote are precluded from exercising their franchise if they are disqualified by any provisions of the Constitution or any law made by the appropriate legislature. It is only persons who are entitled to exercise their franchise that are shown in a list called the electoral roll. The manner in which the electoral rolls are prepared and the conduct of elections including the decisions of disputes regarding elections are all laid down by the Parliament in the Representation of the People Act, 1950 (Act of 19500 and the Representation of the People Act, 1951 (43 of 1951).

Under the provisions of the 1950 Act, provisions are made for the preparation of the electoral roll specifying the disqualifications of persons who are not entitled to be shown in the electoral rolls. A complete procedure for objections to the entries in the rolls and for enquiring the objections to the entries in the rolls and for appeal and its finality. The jurisdiction of the civil Court is barred in respect of adjudication relating to the right of a person to be registered in the electoral rolls and as to the legality of any orders passed by the electoral registration officer as regards the preparation or the revision of the rolls. Under the 1951 Act, provision is made inter alia constituting an election tribunal to declare an election void on certain specified grounds including amount other things, the improper reception of votes or the reception of votes which are void and for setting aside an election on the ground of non-compliance with the provisions of the Constitution or the Representation of the People Act. For the purpose of holding elections for the local bodies like municipalities electoral rolls prepared under the provisions of the foregoing statutes are taken as the basis.

Similar provisions are contained in the local Acts providing for disqualifications of the voters for the constitution of an election tribunal and to declare elections void on certain specified grounds including the improper reception of a vote and non-compliance with the provisions in the Municipalities Act corresponding to section 30 of the Representation of the People Act 1950 as to the bar of the civil Court's jurisdiction, it is contended that as the electoral roll prepared for the Assembly is adopted as the basis for the elections of the Municipal Councillors, the tribunal constituted under the relevant rules is also stituted under the relevant rules is also bound by the principle of finality attached to the assembly electoral roll incidentally barring its jurisdicationt o question the correctness of the entries in the electoral roll. On behalf of the first respondent it is contended that as the tribunal is vested with plenary powers of setting aside an election on the ground that certain void votes have been received, the tribunal, is, by necessary implication, vested with the jurisdiction to go into the questions whether certain votes were void or not. In the words, it is submitted that the tribunal can find out on evidence whether certain persons who cast their votes were minors or not, that is, under the age of 21 at the relevant date.

59. In order to appreciate the petitioner's grounds of attack against the order in question, it is necessary in the first instance to refer to the Full Bench decision relied on by the first respondent in : AIR1970AP56 (FB) (hereinafter called the Full Bench decision) consisting of Jaganmohan Reddy, C. J. Sambasiva Rao and Kuppuswami JJ. in support of the decision of the Tribunal (Subordinate Judge, Anantapur). It arose out of an order passed y an election tribunal under the Andhra Pradesh Gram Panchayats Act declaring the election of a candidate as void on the ground that the candidate was below the age of 21 years on the date of his election. It was held by Sambasiva Rao J. who delivered the judgment on behalf of the Full Bench that the mere entry in the electoral roll is not final or conclusive as regards the age of a candidate and that it is open to an election tribunal to enquire into the said fact in an election petition and to find out whether he was duly qualified to stand for the election.

This conclusion was based upon the following reasons. If a persons under the age of 21 when his name is registered in the electoral roll he suffers from a constitutional disability and therefore the very entry of his name in the electoral roll is non est that is null and void. It is therefore open to an election tribunal to declare such an election as void as being vitiated by non-compliance with the provisions of the Act and the rules made thereunder. In coming to the above conclusion, the decision of an earlier Division Bench in (1960) 2 Andh WR 308 was approved while a doubt was thrown as to the correctness of a decision of another Division Bench in (1961) 2 Andh WR 23. While expressing such a doubt the Full Bench made certain categorical observations virtually undermining the authority of the said decision (1961) 2 Andh WR 23.

60. In (1960) 2 Andh WR 308 a decision of Chandra Reddy, C. J. and Sanjeeva Row Nayudu. J. which is approved by the Full Bench decision : AIR1970AP56 (FB) the election of a municipal councillor was set aside on the ground that the candidate was below the age of 21 years on the relevant date. This conclusion was reached on the following grounds; A combined reading of the provisions of the Municipalities Act and those of the Representation of the People Act. 1950 leads to the conclusion that a person should have attained the requisite agree as a qualification for a candidate. The candidate having failed to satisfy the requirement as to the age, his election was contrary to law and not in compliance with the provisions of the Act. But the learned Judges did not consider the case from the point of view of the constitutional disability as regards the age limit.

61. The decision of Chandra Reddy, C. J. and Chandrasekhara Sastry J. in (1961) 2 Andh WR 23 the correctness of which was doubted by the Full Bench arose out of an election petition under the Madras Village Panchayts Act to declare an election void on the ground that the votes of certain persons who were below the age of 21 years were void and that they were improperly received. It was held by the Division Bench distinguishing the earlier decision in (1960) 2 Andh WR 308) which related to a case of disqulaifications of a candidate that so far as voters are concerned, the question of their being under-age cannot be considered in view of the fact that the age entered in the electoral rolls became final and conclusive. In this decision also the learned Judges did not consider the question of the constitutional disability as regards franchise. It is contended on behalf of the first respondent that the principle laid down by the Full Bench decision thought relating to the case of a candidate's age, is equally applicable to the case of the age of voter and that the decision of the Division Bench in (1961) 2 Andh WR 23 should be held to be no longer good law

62. Having considered the reasoning of the Full Bench, I am inclined to hold that it makes no difference whether the dispute relates to the age of a candidate or a voter and that the same principle may be applied even to the case of a voter who is provided to be below the age of 21 years. It follows therefore that the Division Bench in (1961) 2 Andh WR 23 cannot be regarded as good law in view of the Full Bench decision : AIR1970AP56 (FB). In coming to its conclusion the Full Bench followed the decision of the Madras High Court in : AIR1967Mad244 in which it was laid down that the election of a municipal conuncillor should be declared as void on the ground that one of the voters was below the age of 21 years and that the said vote was shown as an adult in the electoral roll as being contrary to the provisions of the Constitution.

63. Reference may be made to decision of Kerala High Court in AIR 1954 Ker 190 (FB) in which the same view as in Madras was taken.

64. The next case to which reference maybe made is the decision of the Supreme Court in : [1955]1SCR267 which was also followed by the Full Bench. The question before the Supreme Court in this case was whether the nomination of particular candidate at an election for the legislative Assembly was valid, the objection being that he did not attain the requisite age as required by the Constitution. It was held by B. K. Mukherjea, J. who delivered the Judgment on behalf of the Court that the electoral roll is conclusive as to the qualification of the elector except where disqualification is expressly alleged or proved. Though the candidate was described in the electoral roll as having been of the proper age, and was therefore on the face of it fully qualified to be chosen as member of the Assembly, nevertheless, the electoral roll is not final and the election tribunal may on the evidence placed before it come to finding that the candidate was not qualified at all on the ground that there is a breach of the provisions of the Constitution.

It was further observed that the expression 'non-compliance with the provisions of the Constitution' is sufficiently wide to cover cases where there is a fundamental disability in the candidate to stand for the election at all. In coming to this conclusion, the English law as laid down in (1874) 9 C. P. 734 in quoted with approval, namely.

'the register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament'.

65. In (1874) 9 C. P. 734 which was referred to by the Supreme Court in the above case : [1955]1SCR267 the entire history of the law relating to the electoral register and the provisions of the Ballot Act and the Representation of the People Act on the basis of which the Indian Act is passed, has been set out. A fundamental distinction between mere irregularities regarding the exercise of franchise on the one hand and the exercise of franchise by persons disqualified from voting on the other is clearly emphasised. It was observed as follows:

'I think the true construction of these sections, which alone remain, is, to make the register conclusive not only on the returning Officer, but also on any tribunal which has to inquire into elections, except in the case of persons ascertained by the proviso. These are 'persons prohibited from voting by any statute or by the common law of Parliament'.

The principle was illustrated by stating that the correctness of the roll is not open to question on mere grounds of receipt of parochial relief; non-residence within the proper distance of the borough, non-occupation, insufficient qualification, which are not covered by the said proviso. But it is pointed out that the proviso relating to total prohibition covers cases of peers of Parliament, women, persons convicted of crimes who are all totally disqualified from voting. The learned Judge advisedly adds a qualification that his list or persons disqualified is not exhaustive.. In answer to an argument in the said case that the proviso practically leaves open to the inquiry into any voter's vote which, although it may be on the register, is capable of being impeached on any legal ground, it was observed that the argument is ingenious, but untenable.

66. Again in Brijendralalv. Jwalaprasad, : [1960]3SCR650 it was held that even if a disqualification as to age is not apparent on the face of a nomination paper, nevertheless, the validity of the nomination can be challenged before the election tribunal on the ground that the candidate did not infact attain the required age as laid down in Article 173 of the Constitution. It was further observed that

'Under section 36(7) of the Representation of the People Act 1951 a certificate copy of the entry in the electoral roll shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, but this presumption is raised for the purposes of this section and it is made expressly subject to the last clause of this sub-section that is to say, the presumption can arise unless it is proved that the person in question is subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act 1950. But this prime facie presumption can be rebutted by evidence to the contrary'.

67. Reference may also be made to the case : AIR1964Pat417 in which it is held that the entries in the electoral roll are only final with regarded to the proceedings under the rules and that it is perfectly open to the election tribunal in a petition challenging an election to go into the question whether a candidate for an Assembly constituency is an Indian citizen as required by Article 173 of the Constitution of India. It was observed that the opinion to be given by the tribunal under section 100 of the Representation of the People Act 1951 cannot be hampered by even an express finding given under Rules 20 and 23 of the Registration of Electors Rules 1960.

68. In this connection reference may also be made to the relevant law in England.* The right to vote at Parliamentary elections is governed by the English Representation of the People Act. 1949. A person who is not of full age on the qualifying date of the poll is not entitled to vote. A peer of Parliament is legally incapable of voting at a Parliamentary election, even though his name may have been placed upon the register without objection. No person is entitled to be registered or to vote if he is not a British subject or citizen of the Republic of Ireland. Persons of unsound mind and idiots are subject at common law to an incapacity to vote at an election. A person convicted of treason or felony for which he has been sentenced to death, etc. is incapable of exercising any right of franchise. Offenders against election laws are also incapable of exercising their franchise. There is a detailed procedure for preparing the electoral rolls, for hearing and deciding objections thereto, for finalising the electoral rolls and for making additions or alterations thereto.

The register of Parliamentary electors is conclusive of the following questions, namely, whether or not a person registered therein was on the qualifying date resident at the address shown whether or not that address is any constituency; or any particular part of a constituency; and whether or not a person registered therein is registered as a service voter. A person registered as an elector cannot be excluded from voting on the ground that he is not a British subject or citizen of the Republic of Ireland or is otherwise subject to any legal incapacity to vote, or was not of full age. But this does not, however, prevent the rejection of the vote on a scrutiny. The effect of the Ballot Act and the Voters Registration Act as to the enquiry at the time of polling was held to make the register conclusive on the Returning Officer and on the election court, except in the case of persons who were prohibited from voting by any statute or by the common law of Parliament (1874) 9 C. P. 734. It would appear that any person who, being subject to a legal incapacity to vote, votes at an election, will have his vote struck off on a scrutiny apply equally to all election petitions.

69. To a similar effect is the law in America as stated in the Corpus Juris Secuondum Vol. 29 Elections.*

An elector is one who possessed the necessary qualifications for vote. Registration is a method of proof prescribed for ascertaining the electors who are qualified to case votes. it is a part of the machinery of elections and is a safeguard against frauds. It is a regulation of the exercise of the right of suffrage and not a qualification for such right . The right to vote ordinarily is considered to be privilege conferred by the State rather than a natural right of the individual or citizen. The right of suffrage is the right of a man to vote for whom he pleases. The right to vote is a political right or privilege, or civil right to be given or with-held at the exercise of the law making power of the sovereignty.

A person may not vote until he has attained the age prescribed by the Constitution twenty-one years, and persons under the prescribed age are ineligible to vote. Where the age is fixed by the Constitution, it cannot be changed by any statutory regulations. All persons who possess the constitutional and statutory qualifications of electors are entitled on making proper application to the registrars to have their names registered on the voting lists of their respective district. Conversely, persons not entitled to vote are not entitled to be registered. A registration list is conclusive evidence as to the fact of registration of these persons whose names appear thereon. It is at least prima facie evidence of who constitute the qualified voters. Under some provisions, the final registration list is conclusive evidence of those entitled to vote, until reversed or set aside in the prescribed manner, and it cannot be collagerally attacked. Under other provisions, however, such a list is not conclusive of right of those who are registered voters may be inquired into in a contest by the tribunal having jurisdiction of such contest.

70. Reference may now be made to the cases relied on by the petitioner in support of his plea that the election tribunal has no jurisdiction to question the correctness of the entries in the electoral roll. Considerable reliance is placed on a ruling of the Supreme Court in : [1963]3SCR479 which arose out of a panchayat election governed by the Mysore Assembly electoral roll. It appears that the electoral registration officer included the name of the appellant therein without following the procedure prescribed in the rules relating to publication and calling for objections thereto. It was therefore urged that the order of the electoral registration officer in entering the name of the appellant was a nullity which has vitiated the election.

This argument was negative by the Supreme Court in the following terms.

'The electoral registration officer did not follow the procedure prescribed in R. 26 relating to the posting of the application in a conspicuous place and inviting objections to such application. It cannot, therefore, be denied that the inclusion of the name of the appellant in the electoral roll was clearly illegal. Under S. 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to question the legality of any action taken by or under the authority of, the electoral registration officer. The terms of the section are clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll, though illegal cannot be questioned in a civil court, but it could be rectified only in the manner prescribe by law, i.e., by preferring an appeal under R. 24 of the Rules, or resorting to any other appropriate remedy........We find it difficult to say that the action of the Election Registration Officer is a nullity. He has admittedly jurisdiction to entertain the application for inclusion of the appellant's name in the electoral roll and take such name in the electoral roll and take such action as he deems fit. The non-compliance with the procedure prescribed does not affect his jurisdiction, though it may render his action illegal. Such non-compliance cannot make the Officer's act non est, though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy'.

The above observations far from supporting the contention of the petitioner, seem to support the plea of the respondent that if the order of the Electoral Registration Officer is non est, that is, if it is a nullity and not merely erroneous or illegal, the tribunal is not barred from questioning the entry in the roll. The above passage also emphasises the well known distinction in law which is real though thin, namely, between an order passed by an authority without jurisdiction being a nullity and an erroneous order passed by an authority in the exercise of its admitted jurisdiction not being a nullity but merely being erroneous or illegal. It may also be noted that in this case before the Supreme Court, there was no fundamental disqualification or lack of qualification on the part of the voter whose name was included in the electoral roll by the registering officer.

71. The next case, which according to the petitioner's learned counsel has finally settled the question in his favour, is the decision of the Supreme Court in Civil Appeal No. 1359 of 1969 D/- 13-8-1969 = : [1970]1SCR845 . This case arose out of an election petition challenging the validity of an election to the the Assembly Constituency. As regards the vote of one person whose name was included in the electoral roll after the prescribed date it was held to be void and ad regards another voter it was held that the disqualification alleged against him was not a disqualification envisaged in section 16 of the Representation of the People Act, 1950 and that except as provided therein a person is entitled to vote as laid down in section 62 of the Representation of the People Act, 1951. It was pointed out that in that the voters suffered from any of the disqualifications set out in section 16 of the Representation of the People Act, 1950, it is not open to a court or a tribunal dealing with an election petition to challenge the entries in the electoral roll.

It was further observed that the relevant provisions of the Representation of the People Act, 1950 relating to the finalisation of the electoral roll constitute a complete code in itself not open to challenge before a civil court as provided in section 30 of the Act or before a Tribunal dealing with an election petition. In coming too this conclusion, reference was also made to the earlier decision of the Supreme Court in : [1963]3SCR479 referred to supra in this judgment. On the strength of the observations in the above civil appeal, it was argued by he petitioner's learned counsel that the only questions which are with jurisdiction of the election tribunal for investigation are the disqualifcations set out in section 16 of the Representation of the People Act 1950 and no other. In other words, the argument is that as the said section does not refer to a disqualifccation on the ground of the under-age, it is not open to the tribunal to go into the said question. This argument is based upon fallacy and a failure to appreciate the true scope of the said decision of the Supreme Court.

72. The above decisions of the Supreme Court bearing upon the interpretation of Section 30 of the Representation of the People Act, 1950 and the applications of those principles by the petitioner's learned counsel in support of his contention can be really appreciated and answered if only the question is examined on principle.

73. The first aspect to be considered is as to the true legal effect emerging from the preparation of the electoral roll. There is a fundamental distinction between the existence of a right, namely, the right of franchise and the power to exercise such a right. The substantive right of franchise is derived from the Constitution, according to which irrespective of religion, race, caste or sex, persons who are above the age 21 years shall be entitled to vote. Though foreigners may be entitled to franchise in their home country, they are not entitled to any franchise in the Indian Union unless they are citizens of India as contemplated by Article 5 of the Constitution. Hence the Constitution defines persons upon whom the right of franchise has been conferred. The second category of persons envisaged in the Constitution are those who are disqualified from exercising their franchise on certain grounds specified in the Constitution or by the legislative enactments. As regards this second category of persons, the law implies that they had the right of franchise but the only bar is that they are prevented from exercising the said right. But the common feature as regards the two categories is that their names cannot be entered in the electoral roll.

The Representation of the People Acts of 1950 and 1951 are enacted in pursuance of the Constitution (Article 327) in order to regulate the manner in which the electoral roll should be prepared and the manner in which elections should be conducted and disputes relating thereto decided. It is therefore clear that the electoral roll prepared inpursuance of the provisions of the Constitution and the Representation of the People Act, 1950 does not by itself constitute the source or the foundation of the substantive right or franchise but the electoral roll is a mere record of the names or persons who are enabled to exercise their right of franchise. For the same reason, persons who though possessed of the right of franchise are precluded from exercising such franchise if they do not get their names included in the electoral roll. The fact that persons having the right are unable to exercise their right if their names are not shown in the electoral roll does not necessarily give rise to the converse conclusion that all persons whose names are entered in the rolls aredeemde under law to possess the substantive right of franchise. In fact, there is no provision of law leading to such a result. The conclusivene sex of the elctoral roll should be understood in this background.

To put it in other words, the Presiding Officer at a polling station cannot refuse to issue a ballot paper in favour of a person whose name is shown in the electoral roll as being over 21 years of age, though apparently the voter is a boy of 5 or 10 years. Similarly at the time of scrutiny of the votes, it may not be possible for the Returning Officer to reject the ballot paper whether an objection is raised or not on the ground that the voter had either no right of vote or was disqualified from exercising the vote. The only ground on which the ballot papers is liable to be rejected is some formal and apparent defect in casting the vote on the ballot paper. The rules providing for objections or correction of entries in the rolls not only contemplate erros or description but also objections regarding qualifications or disqualifcations of the voters. Whether an objection has been raised and decided or whether no objection at all is raised on any one of the above grounds, the electoral roll is final so far as the Returning Officers are concerned.

74. The next question for consideration is how far the entries in the electoral roll are final as against the tribunal which is called upon to declare an election void. It follows from the foregoing cases that irregularities of procedure and other erroneous orders of the Electoral Registration Officers which are passed in the admitted exercise of their jurisdiction are not open to challenge before the tribunal. But orders and entries in the electoral rolls which have no legal effect in the sense that the electors had either no right at all or that they were disqualified from exercising their right are certainly open to challenge before the election tribunal. This view receives support from the decisions of the Supreme Court cited above, namely, : [1955]1SCR267 and : [1960]3SCR650 and : [1963]3SCR479 and the principles of English law empowering an election tribunal to strike off the void votes and incidentally to decide questions of fact in order to find out whether the votes were void or not.

75. This deals us to a final consideration of the limits of the jurisdication of the election tribunal. So far as S. 30 of the Representation of the People Act is concerned, it does not refer in terms to the bar of the tribunal's jurisdiction but specially precludes the civil court from entertaining any disputes regarding the right to be registered in the electoral registration offices. I do not understand that the Supreme Court in the last mentioned case cited supra (Civil Appeal No. 1359 of 1969) = (reported in : [1970]1SCR845 ) intended to interpret the word 'Civil Court' contained in S. 30 as including the election tribunal. We have to understand the observations of the Supreme Court in relation to the context and the and the background in which the observations are made. Evidently, the Supreme Court was referring to the provisions of section 62 read with section 16 of the Representation of the People Act, 1950 as limiting the jurisdiction of the election tribunal from going into questions of disqualifications other than those mentioned in section 62 and section 16 of the 1950 Act.

In the said ruling Civil Appeal No. 1359 of 1969 = (reported in : [1970]1SCR845 ) the Supreme Court was dealing with an argument that one Tarsem Singh, whose name finds a place in the electoral roll became disqualified to exercise his vote as he had taken up Government service subsequent to the finalisation of the electoral roll. In rejecting this argument, it was observed by the Supreme Court that in view of the provisions of section 62 read with section 16 of the Representation of the People Act, the voter did not suffer from any of the disqualifications as mentioned therein and that he could therefore exercise his vote so long as his name found a place in the electoral roll. These observations of the Supreme Court can be easily appreciated if we bear in mind the distinction between a person who has no right of vote, that is, a person who suffers from a fundamental lack of qualification and person who though possessing such right is only disqualified from exercising such a right.

In the case before the Supreme Court, Tarsem Singh had admittedly the franchise right apart from his name appearing in the electoral roll. Hence the exercise of his vote was not specifically barred by any of the provisions mentioned Sections 62 and 16 of the Act. The attempt of the petitioner's learned counsel is to apply these observations to the case of a minor voter. This argument can be easily answered in vies of the true legal position emerging from the electoral roll already stated by me supra. Sections 62 and 16 deals only with disqualifications, that is about persons, who though possessed of the right of vote are precluded from exercising the said right. The language of section 62 clearly supports this distinction when it says 'no person....... shall be entitled to vote'. The expressions 'to vote' should be interpreted as 'to exercise the vote'. The omission of any reference to a minor in section 62 or in S. 16 in quite obvious, for a minor is a person who has no vote at all as laid down by the Constitution and hence the question of his being debarred from exercising such a right does not rise.

When the election tribunal is entitled to enquire into the disqualifications envisaged in sections 62 and 16 of the Representation of the People Act, 1950 as materially affecting the result of the election on the ground of non-compliance with the provisions of the Act, it necessarily follows as a matter of simple logic that the tribunal is entitled to strike down and eliminate the ballot papers relating to persons who have no right at all not to speak of any exercise of the right. By reason of the specific omission of the case of the minors in section 62 and 16, it cannot be contended by any stretch of reasoning that the legislature intended to unhold the result of an election at which certain void votes, namely votes of certain persons who did not possess the very right itself were polled. In view of the fact that the Representation of the People Acts of 1950 and 1951 were enacted under the provisions of law in conjunction with the basic requirement laid down in the Constitution as regards the qualifications for franchise. No doubt in a broad sense persons who though haling the right are disqualified from exercising the same can be said as being disqualified from exercising the vote. But strictly speaking there is a fundamental distinction between the initial want of qualification at all and disqualification as such, for in the second category, the person can exercise the vote in the absence of the disqualification whereas in the first category the person can never exercise category the person can never exercise a right which he did not possess.

It is for this reason that the Supreme Court in the cases mentioned earlier held that it is open to an election tribunal to set aside an election tribunal to set aside an election on the ground that it was not in compliance with the provisions of the Constitution. The omission of the expression 'non-compliance with the provisions of the Constitution or the Representation of the People Act' occurring in section of the Representation of the People Act, 1951, while enacting the relevant rule under the Municipal Act, does not mean that a Municipal election is not vitiated when there is a violation of the provisions of the Constitution. This omission can be explained only on the ground that it was a surplius age or on the ground that it is a result of bad draftsmanship. When the rule under the Municipal Section says that the election can be declared as void if there is non-compliance with the provisions of the Act (Municipal Act) we have to interpret the word 'Act' as taking in the law laid down by the Constitution and the Representation of the People Act.

In this view of the matter the tribunal is vested with the plenary jurisdiction of entertaining any plea, and if necessary to take evidence in support of the plea, and if it is disputed by the opposite party in order to ascertain whether any ballot papers in the eye of law having been signed by persons who did not possess the very right itself, these questions can be gone into by the tribunal notwithstanding the fact that identical objectoins were raised and decided by the electoral registering officer at the time of the preparation of the roll. The provisions of the Representation of the People Act in so far as they provide for the finality of the electoral roll cannot be construed in such a way as to cut down and limit the jurisdiction of the election tribunal which is bound to exercise its powers insetting aside an election as provided in the relevant rules.

In Veluswami C. G. Raja Nainar. : AIR1959SC422 the jurisdiction of the tribunal was stated in the following terms;

'The tribunal exercises jurisdiction under Section 100 of the Representation of the People Act not as an appellate authority against the decision of the returning Officer. An election petition is an original proceeding. The contesting party files a written statement and issues are framed. The trial is conducted as far as possible as regulated by the Civil Procedure Code. The parties are entitled to adduce full evidence and that is the essence of the original proceeding as contrasted with a summary esquire by the returning officer before whom an objection may be decided if it is actually raised'.

It was therefore observed that the notwithstanding any decision of the returning officer with respect to the objections raised against the acceptance of a nomination paper it is nevertheless open to the tribunal to go into the same questioned to find out whether the provisions of the Act have been complied with or not. If the tribunal is precluded from going into such questions it is pointed out that the nature of the enquiry before a tribunal becomes illusory. It was finally observed as follows:

'It is no doubt true that if on its true construction, a statue leads to anomalous results, the Courts have no option the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not it is our duty to adopt the latter and not the former, seeking consolation in the tough that the law bristles with anomalies'.

The above case no doubt upholds the tribunal's power to consider any objections as to want of qualification or disqualification of a candidate whether actually raised before the returning officer or not. Applying the same principle, I think the tribunal should have jurisdication to decide all objections as to disqualifications or want of qualifications of voters, for the simple reason that such invalid or void votes materially affected result of the election on the ground of non-compliance with the substantive provisions of the Constitution or other relevant enactments. Such an enquiry can be conducted by the tribunal notwithstanding the fact that similar objections were already raised before the electoral registration officer at the final preparation of the roll. If the purity of the elections has to be maintained as laid down by the Supreme Court in more than one decision, the tribunal is charged with he duty of not only eliminating votes which are obtained as a result of corrupt practices but also to eliminate votes which are null and void.

76. In the light of the above discussion, I am unable to agree with the other decisions cited by the learned counsel for the petitioner, to which I now propose to refer.

77. In Ghulam Mohinuddin v. Election Tribunal, : AIR1959All357 (FB) the majority view proceeded on the footing that the electoral roll by itself constitutes the source of the right of vote and that it cannot be regarded as void even though the person, a minor, had no right to vote at all under law. The dissenting judgment, if I may say so with respect, brought out the real distinction in the following terms:

'With the greatest respect I am unable to agree with the decision mentioned above because I have already held that want of qualification or 'unqualification' is quite distinct from 'disqualification'. The result of unqualification or want of qualification is that a person cannot at all be enrolled as a voter, but the result of a disqualification is that though he is entitled to be recorded as a voter his name is liable to be struck off on any of the grounds on which the can be disqualified under the Law'.

78. In (FB) the decisaion proceeded on the footing that in spite of the constitutional prohibition, the electoral roll is the foundatiion for the franchise and that the vote cannot be struk down. The decisionof the Gujara High Court in : AIR1969Guj344 also proceeds on the erroneous assumption that it is the electoral roll which congers upon a personthe substantive right of voate an d incidentally the power to exercise the vote. The decision of a single Judge of the Mysore High Court in AIR 1969 Mys 84 does not touch the present question as thedispute therein was that as many as 1000 persons were not given the ballot papers as their nakes were not found in the electaoral roll published in the Marathi language though their names were found inthe equivalent Kannada roll. I am not therfore inclined to accept the reasoning in the last mentioned caser (FB); : AIR1969Guj334 and (AIR 1969 Mys 84) as the said decisions took an erroneious view of othe legal effect emerging from the preparation of the electoral roll.

79. To sum up the foregoing sdiscussion, a person under the age of 21 years has no franchise at all as declared by the Constitution. The entry of his oname in operate to override the Supreme Provisions of the Constitituion. The ballot paper relating to such a person has no legal effect and should be struk down at the scrutiny of the balot papers. As there is no special procedure for an enquiry intoo these questions at the stage of scrutiny, the tribunal is invested with the powers to enquire into the said objections so that the said votes may be eliminated. When an election tribunal is constituted for the purpose of declaring the election void on the ground that the result of an elecatioin is materially affected due to onon-compliance with the provisions of law, the tribuonal is necessarily vested with plenary powers to investigate the said questioinos notwithstanding the fact that the said questions may have been summarily decided wither byt he returning officers or by the electroa registration officers, for, tyhe enquiries contemplated by the electaoral registration officers at the time of finalisation of the rolls or byt he returning officers at thetimw of scrutiny of nomination papers are only summary in the sense that the extent of the enquiry is at the discretion of the said officers. The electoral roll is therfore final and binginid ofn the elecation tribunal except in cases wherew thee voters are prohibites to vote either by the Constitution or by any Act of Parliament or local legislature.

80. For the above reasons it follows that the election tribpunal has got the jurisdicationto decide whther certain voters ar under the age of 21 years, so that if athey are found to be under-aged, their voates may be eliminated. In other words, the enqpuiry is not as regards the correctness of the entries in tyhe roll but as to whether the persons who voted possessed th requisite qualifications as prescribed in the Constitution. The decision in ((1961) 2 Andh WR 23) is therfore overruled in view of tahe principle enuncated by the Full Bench in : AIR1970AP56

Kuppuswami, J.

81. The petitioner and the 1st respondent contested for electionto the Municipal Council, Dharmavaram, Anantapur district form Ward No. 7. The petitoner secured 331 votes, and the respondent 325 votes, with the result, the petitoner was declared elected to the Council.

82. The Ist respondent filed an Election Petition (O. P. No. 107 of 1967) before the Election Tribunal (Subordinate Judge, Anantapur) challenging the election onseveral grounds all of which, except ground No. 3, were abandoned. Ground No. 3 was to the effecta that a number of voters who voted at the election were 'minors' on the date of election, and therir names werefraudeulently inserted inthe electoral rolls. It was stated that the result of the electionohad been materially affected by taking into consideration tyhese votes also.

84. The Ist respondent also filed a petition (I. A. 290 pf 1956) setting out the names of 12 persons with therir serial nimbers inthe elecatoral roll with an allegationthat all of athem were minors, and that the electoral roll to that extent was void. It was prayed that the Tribunal may be pleased to order the cover containing electral roll, and the cover containing the ballot papers isued to the 12 persons.

84. It was contended on behalf of the petitioner that so long as the electoral roll remains in force, all the persons named therein werte entiled to vote. It was not open to the petitioner to question the correctness of the electoral roll on the ground that the names of othe minors wereincluded in that roll.

85. The Tribunal, by its order dated 2nd April, 1969 held that the Ist respondent herin who was the petitoner in the Election Petition is entitled to question the entries inthe elecatoral orollon account of the elector's minority. He came to the conclusion that a prima facie case has bneenmade out fro ordering inspecation of the ballot papers, and other documents, and, therefore, allowed the petition.

86. The writ petition is filed challenging the said order.

87. Therefore, the question for consideration in the writ petition is whether it is open to the petitioner in an Election petition before a Tribunal to contend that certain votes are void as the voaters were 'minors' thought their names are found in the electoral roll.

88. At the outset, it may be pointed out that the expression 'minor' is not apt in this connection. According to Section 11 of the Municipalities Act, the electaoral roll for the Municipal election si the same as the electoral roll faor the Municipal elecation is the same as the elecatroa roll for the Assembly Counstituency prepared under Representationof the People Act, 1951. Under that Act, one of the qualifications for being entered in the electoral roll is that the voter must be not less than 21 years; whereas the age of majority is 18 years. The proper criterion, therefore, is whether the voter has attained the age 21 years or not, and not whether he is a 'minor' or a 'major'. It is, therefore, proper to use the expression, 'under-aged' instead of 'minor' while dealing with this question.

89. The relevant provisions in the Constitution the the Representationof tahe People Act, 1950, the Representation of the People Act, 1951, the Andhra Pradesh Municipalities Act, and the rules made thereunder have been setout indetail in the judgments of my learned brothers which have preceded mune, and it is unnecessary to set them out in detail.

90. In order to determine the jurisdiction of the Election Tribunal under the Municipalities Act, we have to start with rule 10 (c) of the rules for decision of the election disputes made in exercise of tahe powers conferred by Section 326 (2) (b) of athe Andhra Pradesh Municipalities Act. There is ono provision in the Act dealing witht the decision disputes, but Section 326 authorises the Government ot omake rules for carrying out all or any of the puirposes of othe Act including rules relating to elecvtions of tahe Councillors, and in pursuance of that power, the aforesaid rules have been made. Under rule 10 (c) which is the part of the rule relevant for the pruposes of this case, the election of a returned candidate shall be void, if, in the opinion of the Election Tribunal, the result of the elecation has been materially affected by the improper reception, or refusal of a nomination paper, or voate or by any non-compliance witht he provisions of othe Act or the rules made thereunder. Inder this Rule, therefore, in so far as it is relefvant for this case, the Election Tribunal has to declare an election void, if in its opinion.

(a) there has been improper reception or refusal of a vote, or

(b) if there is any non-compliance with thee Act or the rules made thereunder.

The question is whether in considering these matters referreed to inrule 10 (c), the Tribunal has jurisdication to go into the question whether a particular person who has voted is under-aged, and, therefore, was not entiled to vote. Section 11 (6) of the Act states that every person whosoe name appears in the electaral roll for the Municiaplity shall be entitled subject to the provisions of tahe Act ot vote at an election, and no person whose name does not appear insuch roll shall vote at an election. Section 11 (1) provides that the electoral roll for any Assembly constituency as relates to the Municiplaity is deemed to be the electaoral roll under sectaion 11 (2) for the Municipality and under Section 11 (1) every person whose name in included in such part of the electoral roll for any assembly constituency as related to the Municipalty or any portion therefore shall be entitled to be included in the electoral roll for the Municipality and no toher person shall be entitled to be included in such a roll.

The Representation of the People Act, 1950 after the providing in Part III for the preparation of electoral roll in accordance with the provisins contained therein for the Assembly constituency has provided under Section 30 that no civil Court shall have jurisdication to entertain or addjudicate upon any questio whether any person is or is not entitled to be registered inaelectroa roll for an constituency, S. 62 of the Representation of tahe People Act of 1951 provides that no personwho is not and except as expressly provided bythis Act, every personwho is, for the time being enetered inthe electral roll of any constituency shall be entitled to vote in the constituency. Section 100 of the Act gives the grunds for declaring an election to be void. So far as it is erelevantfor the purpose of this case, the High Court shall declare an election void if it is of the opoinion that the result of the election in so far as it concerns the returned candidate has been materiallyaffected byt he improper reception refusal or rejection of any vote or the reception of any vote which is void, or by any non-compliance with the provisions of the Constitutionor of the Act or any rules or orders made under thee Act.

91. There is some difference between the languagee used in Rule

97. This argument, in may opinion, proceeds upon a misconception of the terms of article 326 of the Constitution. That Article starts by declaring that the elections shall be on the basis of adult franchise. The clause that follows explains what is meant by adult franchise, i.e., every person who is a citizen of India and who is not less than 21 years on the said date, as May be fixed in that behalf, by or under any law made by a proper Legislature is entitled to be registered as a voter. Thus, these two qualifications viz., that he is a citizen and that he should not be less than 21 years on a particular date are required by the Constitution and if they are not observed, there is a violation of the provisions of the Constitution. Article 326 also provides that the voters should not be disqualified under the Constitution or any law made by a proper Legislature on the ground of non-reception, unsoundness of mind or corrupt or illegal practice. if the Legislature provides for disqualifications on any of those grounds, those provisions cannot be regarded as provisions of the Constitution. Any violation of those provisions cannot stand on the same footing as the violation of the provision of the Constitution. At any rate, we are not now concerned with the question as to the effect of the non-observance of the provisions of that Act in the preparation of the rolls. Here, we are concerned with the violation of the requirement of age, as provided under the Constitution in preparing the electoral roll.

98. It now remains to consider the various decisions relied on by the advocates on both sides. In : [1955]1SCR267 the Supreme Court had to consider the case of an election of a candidate below 25 years of age. it was argued that by accepting his nomination, there was an improper acceptance of nomination, and further there was a violation, or non-compliance with the provisions of Article 173 of the Constitution which provides that a person less than 25 years is not qualified to be chosen to fill a seat in the Legislative Assembly of a State. On behalf of the candidate it was contended that as his name found a place in the electoral roll, and as the electoral roll was conclusive, his right to stand could not be questioned. The Supreme Court held that as the want of qualification, namely, being under-aged was not apparent on the electoral roll itself, or on the face of the nomination paper the acceptance of the nomination paper could not be regarded as an improper reception of a nomination paper. It was, however, held that the election should be held to be void on the ground of the Constitutional disqualification of the candidate, and the expression 'non-compliance with the provisions of the Constitution' was sufficiently wide to cover cases of a fundamental disability in the candidate to stand for election at all.

It was observed that the acceptance of the nomination by the Returning Officer is not final, and the election tribunal may, on evidence, placed before it come to a finding that the candidate was not qualified at all. I am of the view that though this case relates to a candidate the same reasoning would apply to the case of an elector. The disqualification of an elector to vote on the ground of under-age is as much a constitutional disqualification as that of an under-aged person to stand for election. The former is prohibited by Article 326 and the latter by Article 173 of the Constitution.

99. In 91960) 2 Andh WR 308, a Division Bench of this court was also concerned with the case of a person below 21 years who was elected to the Municipal Council. It was held that the election of such a candidate amounts to on-compliance with the provisions of the Act, and could be called in question under rule 10(c) of the rules made under the District Municipalities Act. This decision was referred to with approval in a recent decision of a Full Bench of this court in 91969) 1 Andh WR 52. The Full Bench also had to deal with the case of an election of a person below the age of 21 years on the date of the election. It was held that the mere entry in an electoral roll is not final, and conclusive in regard to the age of the candidate, and it is open to the Election Tribunal to enquire in an Election Petition into the age of the candidate, and to find out whether he is duly qualified to seek the election. it was held that if a person does not complete the age of 21 years when his name is registered in the electoral rolls, he suffers a Constitutional disability and, therefore, the very entry of his name in the electoral roll is null and void, and is non est.

Thus, it appears that the basis of the decision is that the Election Tribunal is entitled to go behind the electoral roll, and come to the conclusion on the evidence before it whether the name of the voter was properly entered in the electoral roll. Though, it was observed that the question of the validity of a vote was not before them, and it was to necessary for them to decide the question whether, when persons below the required age exercise their franchise in an election, such elections would be vitiated by the non-compliance with the provisions of the Act, or the rules made thereunder the following observations in that judgment indicate that they were inclined to take the view that the election would be vitiated:

'That apart, it is very doubtful, to what extent a person, who has incurred to constitutional disability I regard to the age, can validly exercise his vote simply because his name finds in the electoral roll. If he has suffered a constitutional disability, in regard to age, and if for that reason, the very entry of his name in the electoral roll is null and void and non est, that would mean that he is not a voter and cannot, therefore, exercise his vote. That might lead to the result, that when such persons exercise their franchisee in an election such election would be vitiated by non-compliance with the provisions of the Act or the Rules made thereunder.'

These observations, in may view, follow directly form the ratio of the decision before them, namely, hat the entry in the roll of a person who is under a constitutional disability to vote, is non est.

100. In : AIR1967Mad244 the very question before us felt to be considered by a Division Bench of the Madras High Court. it was held that the electoral roll which contained the list of voters below the age of 21 years infringes the Constitution, to that extent, and the effect would, therefore, be that part of the instrument would be void, and non est, and the Election Tribunal has every jurisdiction to held that the inclusion of the names is a nullity. The decision of this court in (1960) 2 Andh WR 308 was cited with approval. One of the learned Judges also observed that the reception of the vote of a person who was under-age would amount to an improper reception of a vote within the meaning of rule 10 (c) of the rules under the Madras District Municipalities Act. Mr. Babul Reddy is perhaps justified in saying that as far as this part of the decision is concerned, it may run counter to the decision of the Supreme Court in : [1955]1SCR267 but no exception can be taken to the decision that the electoral roll in so far as it contains the list of voters below 21 years violates the provisions of the Constitution, and is void to that extent.

101. In : AIR1964Pat417 the question was whether it was open to the Tribunal to investigate into the question as to whether it was open to the Tribunal to investigate into the question as to whether a particular candidate was citizen of India or not on the date of his election. Though the question before the Division Bench in that case was some-what different from that with which we are concerned here, they considered a preliminary objection raised namely, that when the voter was registered in the electoral roll it must have been decided that he did not suffer form any disqualification, in other words, it must have been deemed to have been decided that the voter was a citizen of India and it was not open to the Tribunal to decide in the election. petition whether he was or was not a citizen. Dealing with this objection, it was observed that the opinion given by an Election Tribunal in an election petition cannot be hampered even by an express finding given under the rules, and that the finality contemplated under the rules has reference to the proceeding under the rules, and if cannot debar the Tribunal form considering the question.

103. In a recent decision of the Supreme Court (unreported) in Civil Appeal 25 of 1969, D/- 13-8-1969 = : [1970]1SCR839 , the controversy related to the validity of some of the votes of voters whose names were included in the electoral roll after the date fixed under section 23 of the Representation of the People Act, 1950. it was held that the Electoral Registration Officer had no power to include new names in the electoral rolls after that date. Therefore, the votes of the electors whose names were included on the rolls on that date, must be held to be void votes, and, therefore, would be covered by Section 100(1)(d)(iii) of the Act which deals with improper reception, refusal or rejection of any vote, or the reception of any vote which is void. This principle in my view, will apply with greater force to the case of the vote of a voter who is below the age of 21 years as, such as vote being opposed to Article 326 of the Constitution, would be a void vote.

104. The decision relied on by the petitioner as supporting his contention that the Election Tribunal has no jurisdiction to go into the question whether a voter whose name appears in take electoral roll is under-aged, and hence his vote is void, and has to be rejected, may now be considered.

105. The first of these decisions relied on is that of a Division Bench of this Court in (1961) 2 Andh WR 23. That case related to an election under the Madras Village Panchayats Act, the provisions of which are on the same lines as the Andhra Pradesh Municipalities Act. It was held that the electoral roll is conclusive as to the qualification of a voter and, therefore, when tow voters whose names appeared in the roll where allowed to record their voters, there was n improper reception of votes, nor non-compliance with the provisions of the Act, or the rules framed thereunder. In view of what has been stated earlier, we have to dissent form this view, Referring to the decisions of the Supreme Court in : [1955]1SCR267 , it was stated as follows:

'It was ruled by the Supreme court that the Electoral Roll was conclusive as to the qualification of the elector except where the disqualification was expressly alleged or proved and that where a person of under-age was shown as having been of proper age in take Electoral Roll, , it could not be said that his nomination was improperly accepted by the Returning Officer within the meaning of S. 100(1)9c) of the Representation of the People Act 1951, so as to render the whole election void. Thus, the casing of a vote by a person under the age of 21 but whose name is recorded in the Electoral Roll does not in any way vitiate the election.'

This purported summary of the decision of the Supreme Court is, in our opinion, a result of misappreciation of the judgment of the Supreme Court. It is true that the Supreme Court held that the acceptance of nomination would not be an improper acceptance, but it was held by the Supreme Court that the acceptance of the vote would result in a violation of the provisions of the Constitution. As a matter of fact, in that case, the election was held to be void on that ground.

106. Considerable reliance was placed upon a decision of the supreme Court in B. M. Ramaswamy v. B. m. Krishnamurthy : [1963]3SCR479 . There an application was filed before the Registration Officer for inclusion of the Appellant's name in the electoral roll, and on such application, his name was included, but the Electoral Officer did not follow the procedure prescribed in rule 26 relating to the posing of the application in a conspicuous place, and inviting objections to such application. It was held that though the inclusion of the name was illegal, the action of the Registration Officer was a nullity as the non-compliance with the procedure proscribed did not affect his jurisdiction. In those circumstances, it was held that the inclusion of his name can not be questioned under section 33 of the Representation of the People Act. It is thus seen that the case does not deal with a void vote, Far from being of assistance to the petitioner, the decision recognises the distinction between a case where the action of the Electoral Officer in preparing the roll is a nullity, and where it is not. The Supreme Court observed that the non-compliance with the procedure cannot make the Officer's act non est, though his order is liable to be set aside in appeal, or by resorting to any other appropriate remedy.

From these observations it is clear that if the officer's act were non est the result of the decision would have been otherwise. It has already been pointed out that in this case the roll prepared in so far it includes the names of voters below 21 would violate the Constitution and, therefore, such entries would be a nullity, and non est. The distinction between the tow classes of cases has been brought out clearly in another decision of the Supreme Court (unreported) in Civil Appeal No. 1359 of 1969, D/- 13-8-1969 = (since reported in : [1970]1SCR845 ). In that case, the Supreme Court had to consider two classes of cases (1) the case of votes which were included in the electoral roll after the date prescribed, and (2) the vote of a person who had become a Government servant by the time the polling took place. The Supreme Court held that the first class of cases were void voters following its decision in Civil Appeal No. 25 of 1969, D/- 13-8-2969 = (reported in : [1970]1SCR839 ) referred already. But, as far as the vote falling under the 2nd category was concerned, it was observed that in view of the provisions of S. 23(3) of the Representation of the People Act, 1950, every person who is for the time being entered in the electoral roll of a constituency as it stood on the last day for making a nomination in an election in that constituency, is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.

After holding that the prohibitions contained in Section 62 of the Act read with Section 16 do not apply and no other provisions of law in the Act or in any other law was brought to their notice disqualifying him form exercising the vote, the Supreme Court observed as follows:

'The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was valid vote or not. In view of section 30 of the 1950 Act, civil courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency . . . section 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear form those provisions that the entries found in the 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 any election.

These observations which are strongly relied upon were made in connection with a vote which was not void, or non est. On the other hand, in the same judgment, void votes were excluded from consideration. In the case before us, the vote of a person below 21 would violate article 326 of the Constitution, and would be a void vote coming under the first category of cases referred to in this judgment.

107. Our attention was also drawn to a decision of Full Bench of the Punjab High Court in (FB), a judgment of a single judge of the Gujarat High Court in : AIR1969Guj334 following the decision of a Bench of that Court in Kantial Mathudas Parkh v. Village Panchayat of Shivarajpur, (1963) 4 Guj LR 929 and a decision of the Allahabd High Court in : AIR1959All357 (FB).

108. (FB), dealt with the case of the same nature as that before us, namely the vote of a person whose name is entered in the electoral roll, but who is less than 21 years on the qualifying day. Dealing with article 326 it was observed that it referred only to the qualification for being entitled to be registered as a voter, but it did not add that the person so qualified shall have a right to vote. We do not see any basis for such a distinction. If the effect of the article is that persons less than 21 years cannot be registered as voters, it follows that any entry in an electoral roll of a person who is less than 21 years would contravene article 326 of the Constitution. Fro the reasons stated in this judgment, we have to express our dissent from the view expressed in this decision.

109. In view of what we have observed, we have to respectfully dissent also from the majority decision of the Allahabad High Court in : AIR1959All357 (FB).

110. In AIR 1969 Mys 84 the electoral rolls for an Assembly constituency were published in two languages in such a way that the serial numbers of the electors in either list differed from the other, and that some names of the electors in the Marathi roll were altogether dropped. One of the questions raised was whether the grievances of the petitioner relating to the legality or correctness of the Marathi electoral rolls can be basis of an election petition under section 100(1)(d)(iv) of the Representation of the People act 1951 and whether it was not barred by Section 30 of the Representation of the People Act, 1950. The case does not deal with a vote of a person who is under-age, but it was broadly stated the correctness of the legality of the electoral rolls is barred under section 30 of the Representation of the People Act. We are not prepared to agree that the bar applies to the case of a vote of under-age person which according to us, contravenes the Constitution, and is void.

111. The position under the English Law also seems to be that notwithstanding the fact that the Register of rolls is final, the vote of a minor can be struck off on scrutiny. Under English law, a person who is not of full age on the qualifying date, and on the date of the poll, is not entitled to vote. If such a person votes, his vote may be struck off on scrutiny; see Halsbury's Laws of England. 3rd Edition. Vol. 14 page 303. it is true that this result is arrived at by reason of the special provision contained in Section 39(4) of the Representation of the People Act, 1951 which while providing that if a person's name is found in the register of electors, he shall not be excluded form voting on the ground that he is not of full age etc., and states that the provision shall not prevent the rejecting of the vote on a scrutiny or affect his liability to penalty for voting. There was a similar provision in Section 7 of the Ballot Act of 1872 viz. Section 7 which was as follows:

'At any election for a country or borough, a person shall not be entitled to vote unless his name is on the register of voters for the time being in force for such country or borough, and every person whose name is on such register shall be entitled to demand and receive a ballot paper and to vote; Provided that noting in this section shall entitle any person to vote who is prohibited form voting by any statute, or by the common law of Parliament, or relive such person form any penalties to which he may be liable for voting.'

112. It was held in (1874) 9 CP 734 that the proviso to Section 7 of the Ballot Act, 1872 made of the Register conclusive except where persons were prohibited form voting by any stature, or by the common law of Parliament i.e., persons who from some inherent or, for the time irremovable, quality in themselves have not, either by prohibition of statutes or at common law, the status of parliamentary electors. In this clasps would fall persons below a particular age. Though there is no similar provision in our Representation of the People Act, its principle was applied, and the decision in (1874) 9 CP 734 was cited with approval by the Supreme Court in Durga Shanker Mehta v. Thaker Raghuraj Singh : [1955]1SCR267 , where it was observed as follows:

'The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of (1874) 9 CP 734. The 'Register' which corresponds to out 'electoral roll' is regarded as conclusive except in cases where the persons are prohibited from voting by any statute or by the common Law of Parliament.'

113. For the various reasons set out in this judgment, I have come to the conclusion, though not without hesitation 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 21 years of age, and that therefore, the vote cast by him should be disregarded in an election.

114. In the result in view of our finding the Writ petition is dismissed with costs, Advocate's fee Rs. 100/-.

115. Petition dismissed.


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