S V VISWANATHAN Vs. G P RANGASWAMY

JUDGEMENT

(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; 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 disqualification specified in Section 16 of Part III do not include the violation of Art. 326 of the Constitution, by inscribing on the Rolls a voter who is less than twenty one years of age. Under S. 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 (S. 22), for inclusion of names in Electoral rolls (S. 23), and for appeals (S. 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-secs. (1), (2) and (6)) makes it 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" (S. 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 a procedure for revising the Assembly Electoral Roll 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 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.