ORDER
1. The question that arises in this petition is whether a person who had been a voter in the roll of panchayat and had been elected as the President of the Panchayat could be disqualified by the election court on the ground that on the date of nomination he had not attained the age of 21. So far as the fact whether the petitioner has attained the age of 21 on the date of nomination, there is now no dispute for the findings of the lower court that the petitioner had not attained the age of 21 cannot be seriously disputed. Therefore the question arises whether on the finding that the petitioner had not attained the age of 21 years on the date of nomination and whether after his being elected as the President, he could be disqualified by the Election Court.
2. The preparation of the electoral roll for the panchayat is by incorporating the electoral roll for the assembly constituency, so far as the village, is concerned.
3. Article 326 of the Constitution provides that '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 21 years of age on such date as may be 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 election.' The one specific requirement under this Article is that the person should not be less than 21 years of age. Therefore, the inclusion of the petitioner's name in the Assembly roll is not in accordance with the requirement of Article 326 of the Constitution of India. The provisions that relate to the preparation and publication of electoral roll and qualification for inclusion therein are incorporated in S. 20 of the Panchayats Act. Section 20(1) as amended under Tamil Nadu Act 6 of 1968 is that 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 for the Panchayat, and no other person shall be entitled to be included therein. Whatever the position might have been before the amendment after the amendment only persons that are entitled to be inclined in the electoral roll are those who are qualified to be included and the section also provides that no other person shall be entitled to be included therein. This section would therefore disentitle the person to be included in the roll of the Panchayat unless he is qualified to be included in the Assembly roll and therefore the inclusion of the petitioner's name in the electoral roll of the Panchayat is not in accordance with Section20(1) of the Act.
4. Having thus found in favor of the respondent, the question arises as to how and when the electoral roll could be revised or modified. Section20(2) enables the authorized officer to prepare and publish in such manner and at such times as the Government may direct, the electoral roll for the panchayat. The proviso to this section states that no alteration to the electoral roll shall be published after the last date for filing of nomination and before the notification of the results of election. The explanation provides that 'the power conferred by this sub-section on the person so authorized shall include the power to omit in the manner and at the times aforesaid, from the electoral roll for the Panchayat published under this sub-section the name of any person who is dead or who is disqualified 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'. Sub-section(2) to Section 20 therefore enables the authorized officer to prepare and publish in such manner the electoral roll and to modify and to omit names of persons who are not qualified to be included in the voters list. But the proviso states that no alternation to the electoral roll shall be published after the last date for the filing of nomination and before the notification of the results of election. Thus, the proviso sets a deadline for correction of the electoral roll, i.e., the correction can only be made before the last date for filing of the nomination. The point that is contended by the respondent is that even though the last date for correcting the electoral roll has expired the validity of the inclusion of a person's name in the electoral roll can be questioned on the ground that he is not qualified to be included in the electoral roll of the Panchayat. Section20(5) may also be referred to in this connection, which runs as follows:--
'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'.
5. This sub-section contemplates that a person whose name appears in the electoral roll of the Panchayat shall so long as it remains in force be entitled to vote at an election subject to two conditions laid down in the sub-section, viz., (1) subject to the revision thereof which might have taken place; and (2) subject to the other provisions of the Act. The provision as to revision of the electoral roll is provided for under Section20(2). So far as the other provisions are concerned, there is no indication that a person whose name has been wrongly included can be excluded from the electoral roll after the last date for filing of nomination by amendment of the electoral roll. In my view, therefore, where a person's name has been rightly or wrongly included in the electoral roll and has not been revised under sub-section(2) to Section 20 till the last date of the filing of the nomination, he shall be entitled to vote at an election subject to the other provisions of the Act. It is not disputed by the learned counsel for the respondent that there is any other specific provision in the Act which could disable the person whose name has been included in the Panchayat electoral roll though erroneously from his right to vote.
6. This petition is filed for disqualifying the petitioner who has been elected as the President on the ground that he had not attained the age of 21 years on the date of nomination. Section 25 enumerates the disqualification of members and Section 26 provides that subject to provisions of Section 28 a member shall cease to hold office under any of the grounds mentioned in sub-section(a) to (j) of Section 26. This being an election petition questioning the validity of the election of the petitioner Section 25 is applicable. Section 26 also will be applicable because he has taken office. But none of the disqualification's mentioned refer to the requirement that the person should have attained the age of 21 years on the date of the nomination. So strictly the validity of the election cannot be questioned on any ground mentioned under Section 25 or 26 of the Act.
7. Mr. T. R. Mani, the learned counsel for the respondent, submitted that one of the basic requirements of a person being included in the electoral roll of the assembly under Article 326 of the Constitution is that he should have attained the age of 21 years on such date as may be notified and that no person who is not qualified to be included in the electoral roll of the assembly can be included in the electoral roll of the Panchayat. Thus, want of qualification being basic even though the name had not been omitted by the authorized officer under S.20(2) within the time prescribed, he will not be entitled to vote. In support of his contention a decision of a Bench of this Court in Viswanathan v. Rangaswami, : AIR1967Mad244 is cited. The Court held that where the electoral roll for the Municipality (that case related to municipal roll) infringed the Constitution in any respect, that part was void and was non est. The Full Bench of Andhra Pradesh in Govardhan Reddy v. Election Tribunal, Bapatla, : AIR1970AP56 , has held that when a person has not completed the age of 21 years and when his name is registered in the electoral roll 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. This decision is given in relation to the electoral roll in the Panchayat. The two decisions cited are in support of the contention of the learned counsel for the respondent. But, I regret, I am not able to concur with the two decisions, for, in my view sub-section(2) to Section 20 and Section 25 would not enable the election court to go into the question when once the electoral roll had been finalized under Section20(2) and when the petitioner's name continues to remain in the electoral roll without having been revised and without coming under disqualification under any other provisions of the Act as stated in Section 25 of the Act. The right to vote is one conferred under the statute and the question that a person's name has been wrongly included cannot be gone into after the stage mentioned in Section20(2) of the Act except in accordance with the provisions of Section 25 of the Act.
8. The Supreme Court has repeatedly held that when once the name of a person is properly included in the electoral roll and he is allowed to vote, such voting cannot be questioned before the Election Tribunal. In B. M. Ramaswamy v. B. M. Krishnamurthy, : [1963]3SCR479 , which related to an election under the Mysore Village Panchayats and Local Boards Act, the Supreme Court held that the Mysore Act proceeded on the basis that the voter's list was final for the purpose of election, that the Act conferred a special jurisdiction on the Munsif to set aside an election and that he could do so only for the reasons mentioned in Section13(3) of that Act. The Supreme Court referred to Section 13(3)(a)(d)(i) of that Act which related to the improper acceptance of nomination and pointed out that there was no improper acceptance of the nomination of the person, for his name was in the list of the voters and he was qualified to be elected as a member of the Panchayat. It was also observed that there was no provision in that Act which enabled the High Court to set aside an election on the ground that, though the name of a candidate was in the list, it had been included therein illegally.
9. This decision has been referred to and followed by the Supreme Court in Baidyanath Panjira v. Sitaram Mahto, : [1970]1SCR839 , Kabul Singh v. Kundan Singh, : [1970]1SCR845 and Wopansao v. N. L. Odyuo, : AIR1971SC2123 . Baidyanath Panjira v. Sitaram Mahto, : [1970]1SCR839 relates to a case under the Representation of the People Act. The Supreme Court held that a fair reading of the various clauses in Section 27(2) of the Representation of the People Act, 1950, would make it clear that the entries in an electoral roll of a constituency, as they stood on the last date for making nominations for an election in that constituency should be considered as final for the purpose of that election.
10. In : [1970]1SCR845 , another case under the Representation of People Act, the Supreme Court has held that, in view of the provisions of Section 62 of the Representation of the People Act 1951, read with Section 23(3) of the 1950 Act, every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for 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. Their Lordships observed that the relevant provisions of the Representation of the People Act formed a complete code by themselves in the matter of preparation and maintenance of electoral rolls and that it was clear from the provisions that the entries found in the electoral roll were final and were not open to challenge either before a Civil Court or before a Tribunal which considered the validity of any election.
11. In Pampakavi Rayappa Belagali v. B. D. Jatti, : [1971]2SCR611 , the Supreme Court held that the entire scheme of the Act of 1950 ad the amplitude of its provisions showed that the entries made in an electoral roll of a constituency could only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless the question of violation of the provisions of the Constitution was involved. It will be noted that in this decision the Supreme Court refers to the powers of a tribunal under Section 100(1)(d)(v) of the Representation of the People Act. The Supreme Court also approved of the decision of a Full Bench of the Punjab High Court in Rooplal Mehta v. Dhan Singh, which related to the disqualification of a person, whose name was found in the electoral roll, as he had not attained the age of 21.
12. To a similar effect are the observations of the Supreme Court in : AIR1971SC2123 .
13. So far as disqualification due to age is concerned, Durga Sankar Mehta v. Raghuraj Singh, : [1955]1SCR267 deals with the question. That case was one under the Representation of the People Act and the question was whether the Election Tribunal could go into the question whether a person, whose name was found in the electoral roll, could be disqualified on the ground that he had not attained the age of 21. The Supreme Court points out that the election should be held to be void on the ground of constitutional disqualification of the candidate and not on the ground that his nomination had been improperly accepted by the Returning Officer. The Supreme Court expressed the view that a case of this description would come under sub-section(2)(c) of Sec. 100 of the Representation of the People act, corresponding to the present Section 100(1)(d)(iv) of the Act and would amount to holding an election without complying with the provisions of the Constitution. The sub-section provides that, if the High Court is of opinion that there was 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. Thus, under the Representation of the People Act, the question whether a person is disqualified as not having attained the age of 21 years could be gone into under Section 100(1)(d)(iv) of the Act. This decision is referred to in : [1971]2SCR611 where the Supreme Court affirmed the view that the Election Tribunal could declare the election to be void by applying sub-section(2)(c) of Section 100 of the Act.
14. Mr. N. C. Raghavachari, learned counsel for the petitioner submitted that the Supreme Court in : [1971]2SCR611 referred to and approved the decision in (FB) which related to the question whether a person, whose name was found in the electoral roll, could be disqualified on the ground that he had not attained the age of 21. This case can be decided on the basis that there is no provision in the Panchayat Act, which corresponds to Section 100(1)(d)(iv) of the Representation of the People Act. On the other hand, Section20(5) of the Tamil Nadu Panchayats Act, 1958, 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. As already stated, disqualification can only be subject to two conditions, namely, subject to any revision of the electoral roll which might have taken place and subject to the other provisions of that Act. The other provisions which enable the Tribunal to disqualify a person do not include the ground of a person not having attained the age of 21. In this view I am satisfied that the Tribunal is not entitled to go into the question as to whether a person, whose name has been included, should be disqualified on the ground that he has not attained the age of 21.
15. The Civil Revision petition is allowed and the order of the Election Tribunal is set aside.
Revision petition allowed.