BHARGAVAN Vs. ABDUL MAJEED

JUDGEMENT

(1.) The writ petitioner is the elected member of the Kerala Legislature from the Chadayamangalam Constituency, Kottarakkara Taluk, Quilon District; and seeks to vacate the order whereby the Election Tribunal, Quilon has rejected his objection to a witness being examined in the proceedings before the Tribunal. The election was held on February 1, 1960, and the writ petitioner then succeeded, in defeating Abdul Majeed the first respondent to this petition. The unsuccessful candidate has subsequently filed an election petition seeking to set aside the petitioners election and his being declared the duly elected, under S.101 of the Representation of the People Act, 1951. The petition had been published in the Kerala Gazette of April 26, 1960, and the Election Tribunal, Quilon, the 2nd respondent to this writ petition, been directed to adjudicate according to law. One of the grounds taken in the aforesaid election petition is that persons below twenty-one had voted for the writ petitioner, claiming to have attained that age on January 1, 1959. The list of such persons is Annexure III to the election petition and mentions 315 such voters. The aforesaid number is material because the writ petitioner had secured 25,412 votes at the election whereas the election petitioner polled 25,290, another having obtained 1,405. The majority of votes, which the writ petitioner had got, is a narrow one and comes to only 122 votes. One of the several objections taken to the aforesaid ground in the election petition is that the electoral roll is conclusive, and the correctness of the entries therein cannot be investigated by the Election Tribunal, so that some of the persons entered therein as voters cannot be shown to be minors, Because of the aforesaid objection the Election Tribunal has framed, Issue No, 14, which reads as follows:-

(2.) The writ petitioner applied to the tribunal to decide the aforesaid issue first, because he claimed it to be the legal issue and decisive of the aforesaid important point raised by him. The Election Tribunal, has, however, taken the view that Order XV, R.3 CPC. does not authorise its deciding first the issue as the legal issue, because such decision would not decide other issues raised in the enquiry. It is also common ground that the election petitioner had summoned a witness to prove his case of the persons below 21 having voted for the writ petitioner and the writ petitioners learned advocate orally raised the objection of such evidence being admissible on the ground of the electoral roll being conclusive and its mistakes, assuming such mistakes to exist, to be beyond the jurisdiction of the Election Tribunal to investigate and that objection has also not been upheld by the Election Tribunal. This writ petition seeks to vacate the order on the ground that the view taken by the Election Tribunal about its having jurisdiction to adjudicate on the ground of the Election Petitioners some voters being minors is incorrect. The case has been referred to a Division Bench, because of the important legal issue raised by the writ petition; and we stand indebted to the able arguments addressed before us by the learned advocates of the parties.

(3.) It would be of advantage to enumerate the various grounds taken in the writ petition for the Tribunal not having jurisdiction to adjudicate on the ground raised by the election petitioner. These are that: