M. Anantanarayanan, C.J.
1. My learned brother has dealt with the facts and the Issues involved in the appeal So fully, that I am thereby enabled to dispense with a recapitulation of the background of fact, and the parts of the statute law that are applicable to the case. I am in entire agreement with his conclusions, and the reasoning on which they are based; but, in view of the interest of the main issue, I have been tempted to set forth a brief analysis.
2. Perhaps the best way to deal with the main issue, will be to state the argument of Sri Kumaramangalam for the respondents, in its clearest and strongest form. The argument is, tersely, to the effect that the Election Tribunal had no jurisdiction to proceed into the question of the impugned vote in this case; hence, it is argued, the learned Judge (Srinivasan, J.) had no option but to quash the order of the Election Tribunal, by the issue of the writ. Sri Kumaramangalam points out that, even under the Representation of the People Act, 1950, the disqualifications specified in Section 16 of Part III do not include the violation of Article 326 of the Constitution, by inscribing on the Rolls a voter who is less than twenty-one years of age. Under Section 16(1)(a), not being a citizen of India is a disqualification. But there is no reference to minimum age. Under Section 19(a), however, only a person who is not less than twenty-one years of age on the qualifying date, is entitled to be registered. There is a procedure prescribed under the Act itself, for correction of entries in the Electoral Rolls (Section 22) for inclusion of names in Electoral Rolls (Section 23), and for appeals (Section 24). Under Section 100(1) of the Act, the improper reception, refusal or rejection of a vote is a ground of attack against the election, and also under Section 100(1)(d)(iv) 'any non-compliance with the provisions of the Constitution.' On the contrary, as my learned brother has shown, Section 44 of the Madras District Municipalities Act (Sub-sections (1), (2) and (6) make sit clear that a person whose name is included in the Electoral Roll for the Assembly Constituency, is thereby entitled to be included in the Electoral Roll for the Municipality, and is entitled to vote so long as his name appears in the Roll for the Municipality ' as so revised ' (Section 44(6)). The disqualifications of voters are in Section 47, and do not relate to age. Further, under Rule 10(c) of the Rules for decision of disputes as to validity of elections held under Madras District Municipalities Act, it is only the improper reception or refusal of a vote, or non-compliance with the provisions of the Act or the Rules, which can be a ground of attack; there is no reference to infringement of any part of the Constitution.
3. The argument of Sri Kumaramangalam, therefore, distils to this; while there may be procedure for revising the Assembly Electoral Roil under the Representation of the People Act, and thereby an error of this kind (inclusion in the Rolls of a person less than 21 years of age) can be rectified, and there may be a procedure equally available for rectification of defects of the Municipal Rolls, which adopt the Assembly Rolls, under Section 44, there is no procedure for a Returning Officer to reject a vote, on the ground that that name ought not to have been included in the Electoral Roll for the Assembly, and thereby, for the municipality. On the contrary, even the Election Tribunal would be exceeding his jurisdiction,; by going into this question of fact of the age of the voter, under Rule 10(c) of the Rules that I have just referred to. When such jurisdiction is lacking, we ought to totally ignore the finding in the present case, that the voter was less than 21 years of age, and should not have been included in the Assembly Electoral Roll at all. The question of jurisdiction comes first, and therefore the learned Judge (Srinivasan, J.) rightly issued the writ quashing the order of the Tribunal.
4. In my view, this argument has great plausibility and force, if it stood alone, apart from the constitutional issue which is involved. Actually, it could well be argued that, as Srinivasan, J., felt, the decision to issue the writ quashing the order of the Tribunal is greatly reinforced by the observations of the Supreme Court in B.M. Ramaswamy v. B.M. Krishnamurthy : 3SCR479 . But that very decision helps us, in the present context, with regard to the constitutional issue, for the opposite conclusion that we have arrived at. The matter is necessarily different and widely different, where the inclusion of the name in the Electoral Roll is a nullity, or is non est, because it infringes the Constitution. The following passage in the judgment of the Supreme Court is here significant:
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 prescribed by law, i.e., by preferring an appeal under Rule 27 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. We find it difficult to say that the action of the Electoral Registration Officer is a nullity....Such non-compliance cannot make the officer's act non est....
5. This very passage reinforces our view that the consequence of such a ground of attack, or its validity might have been viewed very differently by their Lordships, if it had been based upon an infringement of the Constitution, rendering the inclusion of the name a nullify, or non est. Where this has happened, we are constrained, to agree with the ground urged by the learned Counsel for the appellant, Sri M.K. Nambiar that the fact is precisely as if the name is not in the Electoral Roll for the Assembly, at all.
6. This line of reasoning can very simply and tersely be demonstrated. In Basu's Commentary on the Constitution of India (5th Edition), Volume I, at page 159 will be found set forth a statement of the constitutional law in this country, following the dicta of Marshall, C.J., that a law or an instrument repugnant to the Constitution is void or non est; it is a nullity, and the result is that as though it h .d never been enacted. Emphatic passages to that effect will be found in Deep Chand's case : AIR1959SC648 and my learned brother has sufficiently dealt with this aspect. Again, we are in entire agreement with the argument of Sri Nambiar, that the Electoral Roll for the Assembly can only be regarded as an instrument created by statute, namely, the Representation of the People Act, by force of the provisions of which it has come into existence. Certainly, it cannot be a mere material or physical object. As my learned Brother has affirmed, where such an instrument created by statute infringes the Constitution, in any respect that part or respect is void and is a nullity, upon even stronger grounds than in the case of an Act of Parliament.
7. In certain earlier decisions, which are not without relevance to this context, I have stressed that the old division of property into movable and immovable embodied in such enactments as the General Clauses Act and the Civil Procedure Code, may no longer suffice for the juristic objectives of a Welfare State. On the contrary, a different orientation in this respect would appear to be called for, and the basic division may be that adumbrated by Dicey, namely, corporeal and incorporeal, movable and immovable being the forms or sub-divisions of corporeal property. Clearly, an incorporeal property right has to be distinguished from the paper on which it is engrossed, for the simple reason that the right may, or does, survive the destruction of the paper, which is merely evidence of the right. Upon analogous reasoning, an Assembly Electoral Roll is an instrument created by statute, and not merely a material object.
8. Sri Kumaramangalam does not dispute that, where the Assembly Roll did not include the name of a voter, and that person attempted to vote at a Municipal Election, it could well be argued that, his name being omitted from the Assembly Roll and the corresponding Municipality Roll, he cannot vote; the objective fact whether the name is there or is not there would certainly be gone into by the Election Tribunal. But, where the name has been included in the Assembly Rol), infringing the provisions of the Constitution, the effect, as we have seen, is that that part of the instrument is void, and is non est. It is precisely as though it had never existed : Vide r passages in Deep Chand's case : AIR1959SC648 .
9. Consequently in my view, the Election Tribunal had every jurisdiction to hold that the inclusion of the name is a nullity, that the name is thereby effaced and hence that the vote is invalid.
10. The argument of Sri Kumaramangalam that there is no adult suffrage prescribed in Article 326 of the Constitution for elections to local bodies, is beside the point; we are not now considering whether, under some other law, a man could vote at a Municipal Election, though less than 21 years of age. On the above reasoning, it follows that the appeal has to be allowed, the order of the Election Tribunal has to be confirmed and the writ petition dismissed. We are making no observations upon the propriety of amending Rule 10(c) of the Rules, with regard to the decision of disputes in regard to elections under the District Municipalities Act, to include a ground of infringement of the Constitution, parallel to Section 100(1)(d)(iv) of the Representation of the People Act. That is entirely for the authorities to decide. We are accepting the finding of the fact that the voter was less than 21 years of age; as the learned Judge (Srinivasan, J.) did. It is not disputed that, in writ jurisdiction, we have to accept that finding.
P. Ramakrishnan, J.
11. The facts leading to this Writ Appeal filed under the Letters Patent against the Judgment of Srinivasan, J., in Writ Petition No. 2118 of 1964 are briefly the following. In the election for Ward No. IX of the Gobichettipalayam Municipality held on 5th February, 1964, it was found at the counting of votes, that the writ petitioner G. P. Rangaswami and the first respondent S.V. Viswanathan had secured an equal number of votes. In such a case, under the procedure prescribed, the election had to be determined by the casting of lots, and this resulted in the writ petitioner being declared elected. Aggrieved against this result of the election, the first respondent filed an election petition O.P. No. 14 of 1964. Several grounds invalidating the election were canvassed therein, but for the present purpose we are concerned with a single allegation, that ballot paper No. 361 allotted to the son of the petitioner, one Sri Ramakrishnan, was invalid, because, on the date of the poll, this voter was below 21 years of age and was, therefore, incompetent to vote. After taking evidence, the Election Commissioner found this allegation of fact to be established. This resulted in the petitioner securing only 514 valid votes, as against 515 votes secured by the first respondent. The Election Commissioner thereupon set aside the election of the petitioner, and declared the first respondent to have been duly elected. Against the aforesaid decision, the aggrieved petitioner filed a writ petition, which came up before Srinivasan, J., for the issue of a writ of certiorari under Article 226 of the Constitution, for the purpose of quashing the order of the Election Commissioner. The learned Judge, after a careful consideration of the relevant provisions of the District Municipalities Act (V of 1920) and the Rules framed thereunder came to the conclusion that in view of the specific provisions of the District Municipalities Act relating to the finality of electoral rolls and the restricted scope of the enquiry before the Election Commissioner, for the purpose of invalidating an election, investigation into the disqualification of a voter by reason of his being below twenty-one years of age within the meaning of Article 326 of the Constitution, would fall outside the jurisdiction of the Election Tribunal. Consequently, he allowed the writ petition and quashed the order of the Election Commissioner. The first respondent has filed the present appeal before us under Clause 15 of the Letters Patent.
12. The relevant provisions of the District Municipalities Act are the following:
44(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.
44(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, any person authorised by the Election authorities in this behalf shall publish in such manner as the State Government may direct, the portions, of the said rolls which relate to the Municipality or of the alterations therein, as the electoral roll for the municipality or as alterations to such roll, as the case may be.'
44(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 J and no person Whose name does not appear in such roll shall vote at an election.
47. Notwithstanding anything contained in Sub-section (6) of Section 44 a person who is of unsound mind, a deaf-muste or a leper shall not be entitled to vote at any election to a Municipal Council.
We are not concerned with Sections 48 and 49 which deal with disqualification for membership of the Council, because the main point for consideration in the present case, is the disqualification of a voter. The provisions for the settlement of disputes as to the validity of an election held under the Act, are contained in the Rules framed under Section 303(2)(a) and (b) of the Act. Rule 1 provides for a Subordinate Judge being appointed as the Election Court, and Rule 10(c) reads:
If in the opinion of the Election Commissioner the result of the 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.
The arguments which were accepted by Srinivasan, J., were that under the provisions of the District Municipalities Act, 1920, above referred to, the Electoral roll for any Assembly constituency, prepared in pursuance of the Representation of the People Act, 1950 becomes by incorporation, the electoral roll for the corresponding ward of a municipality, and every person whose name is in the aforesaid electoral roll shall be entitled to vote at an election. The only disabilities in his case would be those enunciated in the other provisions of Act, namely, unsoundness of mind, deaf-mutism and leprosy (Section 47); since other disqualifications like not being a citizen of India or not being 21 years of age on the date prescribed, are disqualifications under Article 326 of the Constitution, and not disqualifications incorporated in the District Municipalities Act, they fall outside the scope of the enquiry by the Election Court for invalidating an election and such enquiry must be confined to ,the limits prescribed in Rule 10(c) above mentioned. Since the name of the voter in question was incorporated in the electoral roll, there could be no question of any irregularity under the first part of Rule 10(c) which deals with the improper reception of a vote (by the Presiding Officer at the time of polling). So far as the second part of Rule 10(e) is concerned, what is alleged in this case is the non-compliance with Article 326 of the Constitution but there is no allegation that any provision of the District Municipalities Act or the Rules made thereunder has not been complied with. For the present purpose, the District Municipalities Act and the Rules framed thereunder must be viewed as a complete code, and in the absence of any provision therein incorporating the disqualification in Article 326 of the Constitution, it will be outside the jurisdiction of the Election Court to take such a disqualification into account. Srinivasan, J. distinguished the Madras Village Panchayats Act, where Section 12(1) provided that every person whose name is included or who is included or who is qualified to be included in that part of the electoral roll for any territorial constituency of the Madras Legislative Assembly which relates to the village or any portion thereof shall be entitled to be included in the electoral roll for the panchayat. This provision was interpreted in Venkatakondiah v. Election Commissioner : AIR1955AP109 . as giving jurisdiction to the Election Commissioner to investigate the disqualification to be enrolled as a voter under the twenty-one year rule. In this connection, the learned Judge also referred to the Full Bench decision of the Allahabad High Court in G. Mohiudin v. Election Tribunal : AIR1959All357 (F.B.) where the facts were more or less analogous to those in the present case. In the provisions of the statute before them, namely, Uttar Pradesh Municipalities Act, the fact of non-attainment of 21 years of age was not specifically mentioned as a disqualification either for entry in the electoral toll or for voting. That Act provided that persons whose names were for the lime being entered in the electoral rolls would be the electors for the purpose. It was held that the right which they had thus secured, to vote, could not be questioned whether at the time of the election or at the stage of the hearing of the election petition, but that right could be challenged only if they happened to be subject to any Disqualification provided for by or under the Uttar Pradesh Municipalities Act, but the fact of non-attainment of 21 years of age was not such a disqualification. There was a decision of the Andhra Pradesh High Court Radhakrishnamurthi v. Subordinate Judge, Bapatla (1960) 2 An. W.R. 308 which was also considered by the learned Judge. There the question was a different one, it related to nomination, of a person who was below 21 years of age, and whether he was competent to stand as a candidate for election. It was held by the Andhra Pradesh High Court on a combined reading of Section 19 of the Representation of People Act and Section 44 of the District Municipalities Act that a person below 21 years of age could not stand as a candidate. It may also be noted in this connection, that in election petitions under the Representation of the People Act, under Section 100(1)(d)(iv), the non-compliance with the provisions of the Constitution (besides the provisions of the Representation of the People Act or any Rules or orders made under that Act) is specifically made a ground for declaring an election to be void, whereas such a provision is absent in the District Municipalities Act.
13. It would, therefore, appear that the entire reasoning before the learned Judge, proceeded on the basis that notwithstanding the undisputed finding of fact that the voter Ramakrishnan was below 21 years of age on the date of poll, the Election Commissioner, acting under the provisions of Rule 10(c) of the Rules framed under the District Municipalities Act, had no jurisdiction to declare his vote invalid and consequently to set aside the election of the writ petitioner. In other words, the District Municipalities Act, and the Rules framed thereunder is a self-contained code, and the Election Tribunal, a creature of that code, had no jurisdiction to traverse beyond it, and rely upon Article 326 of the Constitution, for adding the disqualification of non-attainment of 21 years of age, for the voter, so long as that disqualification had not been incorporated in the District Municipalities Act and the Rules framed thereunder.
14. Before us, learned Counsel Sri M.K. Nambiar, appearing for the appellant, does not dispute the broad proposition thus laid down, that there is no provision in the District Municipalities Act which incorporates the age disqualification under Article 326 of the Constitution; but he urged that if it is found by the Tribunal that the voter in question, suffered a constitutional disability, it would have the effect of rendering the electoral roll, so far as his inclusion therein is concerned non cost and void. The reception of his vote would, therefore, be a case of an improper reception of a vote wihin the meaning of the first part of Rule 10(c), because it would amount to the receiving of the vote of a non-existent voter. This argument no doubt involves a fiction, the fiction being to treat the actual entry in the roll, of a voter's name, when that voter suffers from a fundamental constitutional disability, as null and void. The problem that we have been asked to consider in this case, is whether such an approach to the question can be permitted in the light of the various legal principles that have been pressed before us. The learned Counsel for the appellant referred to the observation of the Supreme Court in Deep Chand v. State of U.P. : AIR1959SC648 at page 659 where following the observation of Mahajan, J., in an earlier case, their Lordships-observed:
It is obvious that if a statute has been enacted and is repugnant to the Constitution the statute is void since its very birth and anything done under it is also void and illegal. The Courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it whether closed, completed or inchoate, will be Wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law.
The argument of the learned Counsel is that here we do not have a statute which has. to be declared to be void by reason of its repugnancy to the Constitution, but a statutory instrument, namely, the electoral roll prepared for the Assembly treated as the effective roll for a municipal ward for election to the Municipal Council and that, if a statute repugnant to the constitution can be deemed to be void from its very birth, a fortiori, a statutory instrument prepared in violation of a constitutional provision, must be also deemed to be void from its very inception. Learned Counsel also referred to the observation in Basu's Commentary on the Constitution of India, Fifth Edition, Volume 1 at pages 157 and 158 where the learned author extracts the observations from the celebrated judgment of Chief Justice Marshall who propounded the doctrine in the United States in the following manner:
If then, the Courts are to regard the Constitution, and the Constitution is superior to an ordinary Act of the Legislature, the Constitution, and not such ordinary Act, must govern the case to which they both apply.
As mentioned already, the learned Counsel wants to extend this principle not to an enactment but to a statutory instrument, the electoral roll in this case, which being in conformity with the District Municipalities Act, will be a valid roll if that Act alone was taken into account but would be invalid, so far as the voter Ramakrishnan is concerned, if Article 326 of the Constitution is taken into account. Learned Counsel also referred to the observations of the Supreme Court in B.M. Ramaswamy v. B.M. Krishnamurthy : 3SCR479 wherein their Lordships drew a distinction between a case where the inclusion of the name of a voter in the electoral roll was illegal, and where it was void. In the particular case before them, they observed that there was no provision in the Mysore Village Panchayats and Local Boards Act--under which the election of a particular candidate was disputed (before the Election Court)--which enabled the High Court to set aside the election, on the ground that though the name of a candidate was in the list, it had been included therein illegally. They also observed that non-compliance with the prescribed procedure, did not render the Electoral Registration Officer's action a nullity or non est, though his order might be liable to be set aside in appeal or by resorting to any other appropriate remedy. Learned Counsel for the appellant, urges that the case before us, is one where the action of the Returning Officer in receiving the vote of the disputed voter was improper because by a fiction, his name itself should be deemed to have been not in the roll. We have to observe that the point stressed before us in this form, by the learned Counsel for the appellant, was not urged by him either before the Election Commissioner or before the learned Judge. This point was also not considered in the Full Bench decision of the Allahabad High Court quoted earlier and which was followed by Srinivasan, J. Learned Counsel urges that it is the duty of Courts of law as well as of Tribunals, to act in accordance with the provisions of the Constitution, and whenever and at whatever stage, their attention is drawn to the fact that there has been a patent violation of a constitutional provision, whether in legislating an enactment or in preparing a statutory instrument, the Courts as well as Tribunals have a duty to give effect to the Constitution. In the present case, apart from the question about the self-contained nature of the District Municipalities Act and the. Rules framed thereunder, limiting the scope of investigation of Election Tribunals and determining their jurisdiction, when a specific breach of the Constitution in the preparation of the statutory instrument, whose contents have to be relied upon for decision in the present dispute, has been brought to the notice of the Election Tribunal, as well as of this Court, effect will have to be given to the consequences which will follow from such a breach. In the light of the authorities quoted above, we are of the opinion that such a constitutional breach involves the rendering of the electoral foll a nullity so far as the disputed voter's name is concerned, and his name entered in the roll must be deemed as non est, for the purpose of acceptance or reception of his vote. It would, therefore, follow that the appeal has to be and is hereby allowed, and the writ petition dismissed. The order of the Election Tribunal is confirmed. No order as to costs.