Full Judgment Text
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PETITIONER:
R. CHANDRAN
Vs.
RESPONDENT:
M. V. MARAPPAN
DATE OF JUDGMENT23/04/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION:
1973 AIR 2362 1974 SCR (1) 46
1973 SCC (2) 166
ACT:
Madras Village Panchayats Act. Ss. 20 and 30-Election of
President from voters-Candidate’s name included in voters
list-Age qualification if conclusive.
Constitution of India, 1950, Art. 227-Power of revision-
Scope of.
HEADNOTE:
The appellant was elected to the office of President of
Village Panchayat of a village in Tamil Nadu. The
respondent filed an election petition contending that the
appellant had just completed 19 years of age and was
therefore incompetent to be elected as President. The
Election Tribunal dismissed the petition but the High Court,
in revision under Art. 227 of the Constitution, took the
view that the appellant was not above 21 years and set aside
the election.
Allowing the appeal to this Court,
HELD : (1) The High Court erred in dealing with the matter
as if it was dealing with an appeal under s. 96, C.P.C.
[47F]
(2) In regard to the election to the village panchayats:
either of members or of the President, there is no
constitutional. provision laying down any age limit. Under
s. 30 of the Madras Village Panchayats Act. the President of
a village panchayat shall be elected by the persons whose
names appear in the electoral roll of the panchayat from
among themselves. Section 20 of the Act does not lay down a
qualification for a voter but only adopts the qualification
laid down for persons to be included in the electoral roll
of the Legislative Assembly constituency of which that
village may be a portion. The provisions of Art. 326 of the
Constitution are not attracted in deciding upon the validity
of the inclusion of a person’s name in the electoral roll
for a panchayat merely because the Panchayats Act has
adopted a part of the electoral roll for an Assembly
constituency as the electoral roll for the Panchayat.
Therefore, all the decisions of this Court regarding the
finality of the electoral roll would apply to the
interpretation of s. 20 that is, once a person’s name has
been included in the electoral roll his right to vote cannot
be questioned when he tries to cast his vote or to stand for
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election or even after the election is over. [48E-F; 49BE;
5OG-H]
Durga Shankar Mehta v. Thakur Raghuraj Singh, [1955] 1
S.C.R. 267, S. K. Choudhury v. Baidyanath Panjiar, [1973] 1
S.C.C. 95 and B. N. Ramaswamy v. B. M. Krishnamurthy,
[1963] 3 S.C.R. 479, followed.
Mahmadhusein v. Q. Fidazali A.I.R. 1969 Guj., 334 Ghulam
Mohiuddin v. Election Tribunal, A.I.R. 1959 All. 357,
Jagannath v. Sukhdeo, A.I.R. 1967 Bom. 317 and P.
Subramaniam v. S. Pachamuthu & Ors. 85 L.W. 567 approved.
Yiswanathan v. Rangaswamy, 1966 (2) M.L.J. 560: A.I.R. 1967
Mad. 244, Goverdhanareddy v. Election Tribunal A.I.R. 1970
A.P: 56 and P. Kunhiraman v, Y. R. Krishna Iyer, A.I.R. 1962
Kerala 190. over-ruled.
Roop Lal Mehta v. Dhan Singh, A.I.R. 1968 Punjab 1, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION :- Civil Appeal No. 1724 of
1972.
Appeal by special leave from the judgment and order dated
April 17, 1972 of the Madras High Court in C.R. No. 1830 of
1971.
M. Natesan and J. Ramamurthi, for the appellant.
K. Jayaram and K. Doraswami, for the respondent.
47
The Judgment of the Court was delivered by-
ALAGIRISWAMI, J.-This appeal arises out of the election to
the office of President of the Muthugapatti village
Panchayat in Salem district of Tamil Nadu held on 31-7-1970
in which the appellant secured 1256 votes as against 1015
secured by the respondent and was declared elected.
Thereupon the respondent filed an election petition before
the Election Tribunal questioning the election. His
contention was that the appellant had just completed 19
years of age and was, therefore, incompetent to be elected
as President. The election Tribunal held that it was not
established that the appellant was below 21 years of age.
It was contended before the Election Tribunal on behalf of
the appellant that once his name was found in the electoral
rolls his election cannot be questioned on the ground that
his age was below 21. Relying upon the decision of the
Madras High Court in Viswanathan v. Rangaswamy(1) the
Election Tribunal rejected this contention, but as it had
held in favour of the appellant on the question of age, it
dismissed the election petition. On an application filed
before the High Court of Madras by the respondent under Art.
227 of the Constitution to revise the order of the Election
Tribunal, a learned Single Judge took the view that the age
of the appellant was not above 21. He went further and held
that his age was below 19 ’though the election petitioner
himself had contended that he was just above 19 and had
produced an extract purporting to be from the birth register
of the village. According to the election petitioner the
successful candidate’s father had only two sons and the
successful candidate was the second of them and the extract
from the birth register related to him. According to the
appellant his father had four sons, of whom he was the 3rd
and he was aged 21. The learned fudge held by a process of
reasoning, which is a little difficult to follow, that the
extract from the birth register produced before the Court
did not relate to the appellant but related to the
appellant’s elder brother and therefore the appellant was
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below 19. The High Court treated the matter as though it
was dealing with a first appeal under section 96 C.P.C. and
not its powers under Art. 227 of the Constitution. It did
not deal with the question of law which would have been its
legitimate province.
However, the important question for decision in this case is
whether once a person’s name is found in the electoral roll
of the village panchayat it is open to the Election Tribunal
or any other authority to question the fact that he was
above the age of 21. The decisions of this Court which have
held that in the case of an election to the Legislative
Assembly the question of age could be gone into were only
where Art. 173 of the Constitution was attracted and the
candidate was not over 25 it was a breach of the
constitutional provision. Otherwise in respect of the
voters whose names are found on the electoral roll, this
Court has consistently taken the view that the question of
their age cannot be gone into in a petition questioning an
election.
(1) 1966 (2) M. L. J. 560 : A.T.R. 1967 Mad. 244.
48
In regard to elections to village panchayats either of
members or of the president there is no constitutional
provision laying down any age limit. Art. 326 of the
Constitution, which lays down the principle of adult
suffrage, lays down that all persons over the age of 21
shall be entitled to vote. But that is because the article
specifically says so; otherwise as pointed out by the Punjab
and Haryana High Court in Roop Lal Mehta v. Dhan Singh(1)
any person over the age of 18 would be an adult. That
apart, the State Legislature is fully competent to legislate
in respect of qualifications of voters and candidates for
election to various local bodies in the State and there is
no constitutional limitation on them so as to make adult
suffrage a requisite for a valid provision of law. They can
as well make any person over the age 18 eligible to vote and
stand for election or they might take a retrograde step and
provide, as was the situation some years ago, that only rate
payers can be voters or candidates for election. ’Therefore
decisions of various courts which held on the basis of Art.
326 of the Constitution that the age limit of 21 years is a
requisite qualification for inclusion in the electoral rolls
of those local bodies and names included in the roll
otherwise would be non est are wholly unsustainable. Under
this category come the decision of the Madras High Court,
already referred to, as well as of the Andhra Pradesh High
Court in Goverdhanareddy v. Elec. Tribunal(2) and Kerala
High Court in P. Kunhiraman v. V. R. Krishna Iyer(3).
This Court has, in numerous decisions beginning from the one
in Durga Shankar Mehta v. Thakur Raghuraj Singh (4 ) and
down to its latest decision in S. K. Choudhary v. Baidyanath
Panjiar(5), consistently held that when once a person’s name
has been included in the electoral, roll his qualifications
to be included in that roll cannot be questioned either when
he tries to cast his vote or to stand for election or even
after the election is over. It is not necessary to refer to
all of them or to quote from them. The only exception made
has been in respect of the requirement under Art. 173 of the
Constitution.
Let us, therefore, consider the position of law under the
Madras village Panchayat Act. Under s. 20(1) of the Act
every person who is qualified to be included in such part of
the electoral roll for any Assembly constituency as relates
to the village or town or any portion of the said village or
town shall be entitled to be included in the electoral roll
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for the panchayat, and no other person shall be entitled to
be, included therein. It is not necessary for the purpose
of this case to refer to the explanation to that section.
Under sub-section (2) of that section any person authorized
in this behalf by the Government shall.’ for the purposes of
that Act prepare and publish in such manner and at such time
as the Government may direct, the electoral roll for the
panchayat or the alterations to such roll, as the case may
be. There is a proviso and an explanation to this sub-
section which we need
(1) A.I.R. 1968 Punjab 1. (2) A.I.R. 1970 A.P. 56.
(3) A.I.R. 1962 Kerala 190. (4) 1955 (1) S.C.R. 267.
(5) 1973 (1) S.C.C. 95.
49
not refer to for the purposes of this case. Sub-section(5)
of that section provides that :
" Every person whose name appears in the
electoral roll for the panchayat shall, so
long as it remains in force and subject to any
revision thereof which might have taken place
and subject also to the other provisions of
this Act, be entitled to vote at an election;
and no person whose name does not appear in
such roll shall vote at an election."
Thus, the section itself does not lay down the qualification
for a ’Voter, it only adopts the qualification laid down for
persons to be included in the electoral roll of the
Legislative Assembly constituency of which that village may
be a portion. It follows, therefore, that all decisions of
this Court holding that when once a person’s name has been
included in the electrol roll, his right to vote cannot be
questioned would be applicable in interpreting section 20 of
th Madras Panchayats Act. S. 22 lays down that :
"No person shall be qualified for election as
a member of a panchayat unless his name
appears in the electoral roll of
the Panchayat."
Sections 23 to 26 refer to various disqualifications for
membership which do not arise in this case. Under s. 30 the
president shall be elected by the persons whose names appear
in the electoral roll for the panchayat from among
themselves.
In Durga Shankar Mehta v. Thakur Reghuraj Singh (supra)
Court observed
"In other words, the electoral roll is
conclusive as to the qualification of the
elector except where a disqualification is
expressly alleged or proved. The electoral
roll in the case of Vasant Rao did describe
him as having been of proper age and on the
face of it therefore he was fully qualified to
he chosen a member of the State Legislative
Assembly. As no objection was taken to his
nomination before the Returning Officer at the
time of scrutiny, the latter was bound to take
the entry in the electoral roll as conclusive;
and if in these Circumstances he did not
reject the nomination of Vasant Rao, it cannot
be said that this was an improper acceptance
of nomination on his part............ It would
have been an improper acceptance, if the want
of qualification was apparent on the electoral
roll itself....... But the election should he
held to be void on the ground of the
constitutional disqualification of the
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candidate and not on the ground that hi-,
nomination was improperly accepted by the
Returning Officer."
This was a case where "Vasant Rao was under 25 years of age
and, therefore, not qualified under Art. 173 of the
Constitution." In B. N. Ramaswamy v. B. M. Krishnamurthy(1)
this Court had to consider the case of an election to a
Panchayat in the State of Mysore. There
(1) [1963] (3) S.C.R. 479.
-L944SuPCI/73
05
also the electoral roll was prepared on the basis of the
electoral roll for the Assembly constituency ’in which the
panchayat was included. Section 10 of the relevant Act
provided that "every person whose name is in the list of
voters of any panchayat constituency shall, unless
disqualify under this Act or under any other-law for the
time being in force, be, qualified to be elected as a member
of the panchayat" which is more or less similar to section
22 of the Madras Act. The name of the appellant in that
case was admittedly, included in the. electoral roll of the
Mysore Legislative Assembly but it was, contended that the
Electoral Registration Officer did not follow the procedure
prescribed for such inclusion under the Representation of
the People Act, 1950. This Court held that though this was
not done, the inclusion of his name in the electoral roll
was not a nullity and that the non-compliance with the
procedure prescribed did not affect the jurisdiction of the
electoral registration officer and it could not make the
officer’s act non est. This Court further proceeded to
point out
"The Act proceeds on the basis that the
voters’ list is final for the purpose of
election...... In view of S. 10 of the Act it
cannot be said that there is any improper
acceptance of the nomination of the appellant,
for, his name being in the list of voters, he
is qualified to be elected as a member of the
Panchayat. There is, therefore, no provision
in the Act which enables the High Court to set
aside the election on the ground that though
the name of a candidate is, in the list, it
had been included therein illegally."
The laws of various States regarding the preparation of
electoral rolls for various local bodies in the States
proceed on the basis of the electoral rolls prepared for the
concerned Legislative Assembly constituency. Therefore all
the decisions of this Court regarding the finality of the
electoral roll apply directly to the electoral rolls of the
various local bodies.
After the decision of this Court in B. M. Ramaswamy’s case
there was no room for any further difference of opinion on
the matter. It is,-therefore, all the more surprising that
the Andhra Pradesh High Court in Goverdhanareddy v. Elec.
Tribunal (supra) and the Madras High Court in Viswanathan v.
Rangaswamy (supra) took a different view even after taking
note of the decision of this Court. Both these decisions,
as we have pointed out earlier, proceed on a wholly wrong
assumption. Their attempt to distinguish the decision of
this Court in B. M. Ramaswamy’s case is Pointless The
Provisions of Art. 326 of the the Constitution are, not
attracted in deciding upon the validity of the inclusion of
a person’s name in the electoral roll for a Panchayat merely
because the Panchayats Act has adopted a part of the elec-
toral roll for an Assembly constituency as the electoral
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roll for the Panchayat. And in any case all the decisions
of this Court on the finality of the electoral roll and
their not being liable to be questioned Would equally apply
to the electerol rolls of local bodies. For the owns we
have already given the, view consistently taken by this
Court that when once a name is found in the electoral roll
its inclusion could not be questioned in any election
petition must be followed.
51
The decisions of the Madras, Andhra and Kerala High Courts,
already referred to, should be held to be erroneous and that
of the Gujarat High Court in Mahmadhusein v. O. Fidaali(1),
Allahabad Court in Ghulam Mohiuddin v. Election Tribunal(2)
, Bombay High-Court in Jagannath v. Sukhdeo(3), and Punjab
and Haryana High Court in Roop Lal Mehta v. Dhan Singh
(supra) as correct. In this case, therefore, it was not
open either for the Election Tribunal or for the High Court
to go into the question regarding the appellant’s age. The
latest decision of Kailasam. J. in P. Subramanuam v. S.
Pachamuthu & Ors.(4) is consistent with the view we have
taken.
The appeal is, therefore, allowed, the High Courts judgment
set aside and the order of the Election Tribunal restored.
The respondent Will pay the appellant’s costs.
V.P.S. Appeal allowed
(1) A.I.R. 1969 Guj. 334.
(2) AIR. 1959 All. 357.
(3) A.I.R. 1967 Rom. 317,
(4) 85 L. W. 567.
52