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Case Number

Civ. Misc. Writ No. 1462 of 1958

Attorney(S)

S.C. Khare
Ambika Prasad and Sharada Saran Chandwaria
for Opp. Parties

Judges

R. Dayal
M.L Chaturvedi
Jagdish Sahai, JJ.

Acts

provision in Sec. 43-B of the U.P Municipalities Act similar to rule 48(a) of the Rules or Sec. 19(2)(a) of the U.P Municipalities Act and Sec. 15(2)(a) of the U.P District Boards Act. The provisions of Sec. 19 of the U.P Municipalities Act
provisions of Sec. 19(2) of the U.P Municipalities Act. The Town Areas Act, the Municipalities Act and the District Boards Act
U.P Municipalities Act as also the U.P District Boards Act where provisions similar to rule 48(a) exist a sub-section
sub-rule analogous to Sec. 19(2)(a) of the U.P Municipalities Act or Sec. 15(2)(a) of the U.P District Boards Act.
sub-rule analogous to Sec. 19(2)(a) of the Municipalities Act or Sec. 15(2)(a) of the District Boards Act
7th section of the Ballot Act, 1872 (35 and 36 Vict c. 33) (hereinafter referred to as the English Act)
removal.13. Sec. 16 of the Representation of The People Act, 1950 (XLIII of 1950) is:Disqualifications
Sec. 19 of the U.P Municipalities Act and Sec. 15 of the U.P District Boards Act, provisions
ward.69. Rule 5 of the Uttar Pradesh Town Areas (Conduct of Election of Chairman) Rules, 1953
provisions of Sec. 12-B to 12-H of the Municipalities Act to the Town Areas Act. Secs. 12-C
Act.6. Rule 5 of The Uttar Pradesh Town Areas (Conduct of Election of Chairman) Rules, 1953
Sub-sec. (2) of Sec. 8-A of the U.P Town Areas Act, 1914 (hereinafter referred to as the Act)
Secs. 16 and 19 of the Representation of the People Act, Sec. 6-A of the Town Areas Act
Act. Sec. 12F of the Municipalities Act is:12-C. Subject to the provisions of Sec. 12-D,
Sec. 7 of the English Act and sub-secs. (1) and (2) of Sec. 6-F of the U.P Town Areas Act
provisions of Sec. 19 of the Representation of the People Act, 1950 (XLIII of 1950)
Sec. 19(2) of the U.P Municipalities Act and Sec. 15(2) of the District Boards Act
provisions in the U.P Town Areas Act similar to Sec. 97 of the Registration Act,
60th sections of the Reforms Act and the 98th section of the Registration Act
section of the Registration Act and the 60th section of the Reforms Act,
Statutory Provisions and Rules and Notifications Re: Election Petitions
provisions of Secs. 16 and 19 of the Representation of the People Act
Secs. 16 and 19. Still sub-sec. (2) of Sec. 6-F of the Town Areas Act
constituency.74. Sec. 16 of the Representation of the People Act
provisions of Secs. 12-B to 12-H of the U.P Municipalities Act
sub-sec. (2) of sec. 16 of the Representation of the People Act
Sec. 6-F of the U.P Town Areas Act. Sec. 7 of the English Act
provisions of the Rules. Sec. 6-1 of the U.P Town Areas Act
Sec. 17, 18 and 19 of the Representation of the People Act
Act the provisions of the U.P Municipalities Act of 1916
provision similar to Sec. 6-I(1)(a) of the Town Areas Act.
Act the provisions of the U.P Municipalities Act, 1916
section analogous to Sec. 79 of the Registration Act.
provisions of Sec. 15 of the U.P District Boards Act
clause (b) of Sec. 15(1) of the U.P District Boards Act
provisions of Sec. 19 of the U.P Municipalities Act
provisions with Sec. 6-F of the U.P Town Areas Act
Sec. 19(1) of the U.P Municipalities Act. Sec. 19(1)(b)
sub-sec. (2) of Sec. 19 of the U.P Municipalities Act
provisions of Sec. 13-E of the Municipalities Act
provisions of the City of Nagpur Corporation Act
Representation of the People Act qualifications
Sec. 16 of the Representation of the People Act
Sec. 19 of the Representation of the People Act
section i.e Sec. 6-F of the U.P Town Areas Act.
Sec. 16 of the City of Nagpur Corporation Act,
clause (13) of Sec. 2 of the U.P Town Areas Act
provisions of Sec. 6-F of the Town Areas Act
Sec. 79 of the Registration Act, 6 and 7 Vict
Secs. 19 to 28 of the U.P Municipalities Act
ward.72. Sec. 12-D of the same Act is:12-D. (1)
Secs. 12-F, 12-H of the Municipalities Act
roll.18. Sec. 19 of the Municipalities Act
provisions of the U.P Municipalities Act
REPRESENTATION OF THE PEOPLE ACT 1951
Sec. 15(2) of the U.P District Boards Act
Sec. 13-E of the U.P Municipalities Act
Sec. 12-C of the U.P Municipalities Act
Sec. 19(2)(a) of the Municipalities Act.
provisions of the U.P Town Areas Act.
Sec. 19 of the U.P Municipalities Act,
rule 48 of the Rules. The said Sec. 15
Sec. 79 of the Registration Act. Lord
Sec. 13-E of the Municipalities Act.
Sec. 12-D of the Municipalities Act
Sec. 8(4A) of the U.P Town Areas Act
Sec. 6-1 of the U.P Town Areas Act
Sec. 6-F of the U.P Town Areas Act
Sec. 6-H of the U.P Town Areas Act
S. 12-D of the Municipalities Act
clause (a) of rule 48 of the Rules
Sec. 79 of the Registration Act,
Sec. 6-F of the Town Areas Act
Sec. 6-H of the Town Areas Act.
Sec. 6-A of the Town Areas Act
cl. (a) of rule 48 of the Rules,
Act or rule 48 of the Rules
Act.48. Rule 48 of the Rules
provisions of section 12-D,
rule 48(a) of the Rules.
provisions of rule 12
rule 48 of the Rules.
U.P Town Area Act
Rule 12 of Order
Act, to Sec. 6-F(1)
Section 2-D.(3)

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Smart Summary

Comprehensive Summary of the Opinion (Full Bench — Election Tribunal / Electoral Rolls)

Factual and Procedural Background

The petitioner was declared duly elected Chairman of the Town Area Committee, Sakit, in the general elections held in October 1957, receiving 581 votes against 569 for respondent No. 2. Respondent No. 2 filed an election petition challenging the petitioner's election on multiple grounds, including that a number of persons whose names appeared on the electoral rolls were minors or non-residents and therefore should not have been enrolled. The Election Tribunal treated as a preliminary issue (Issue No. 3) whether the petitioner could challenge the enrolment and addition of the voters listed in the Schedules at that stage, and the Tribunal held that it was open to the election petition to question the correctness of the electoral roll entries. The petitioner filed a writ petition (seeking certiorari) in the High Court to quash the Election Tribunal's order dated 29 April 1958. The matter was referred to a Full Bench. The Full Bench issued a common order allowing the writ petition and directing that a writ of certiorari be issued quashing the Election Tribunal's order; the Tribunal was directed to proceed to decide the election petition according to law. The Court's opinions contain differing reasoned views (two judges in the majority; one judge dissenting).

Legal Issues Presented

Whether an Election Tribunal hearing an election petition challenging the election of the Chairman of a Town Area Committee may examine the correctness of entries in the electoral roll (specifically, whether names of minors or non-residents were wrongly entered) at the stage of an election petition.
Whether the electoral roll, once finally prepared and published, is final and conclusive so as to preclude the Election Tribunal from "going behind" the roll to determine if a person who voted satisfied the qualifications (age, residence) required for registration.
Whether the distinction between "qualification" (conditions of registration) and "disqualification" (statutory bars to registration) affects the power of an Election Tribunal to examine the legality of votes cast by persons whose names appear on the electoral roll.
The proper construction and scope of rule 48 (clause (a)) of the Rules framed under the U.P. Town Areas Act (and the relationship of that rule to analogous provisions in the U.P. Municipalities Act and U.P. District Boards Act).

Arguments of the Parties

Petitioner's Arguments (in support of quashing the Election Tribunal's order)

The electoral roll, once prepared and finally published, is conclusive as to the fact that a person's name appears on it and that, for the time being, the person is an elector; the Election Tribunal cannot go behind that roll to test the correctness of entries as to qualifications such as age and residence.
Provisions of the U.P. Town Areas Act (notably Sec. 6-F(1)) and accompanying rules (e.g., Rule 5 governing electors for the Chairman's election) establish that the right to vote flows from the entry of a name in the electoral roll, and therefore a person whose name is on the roll has a prima facie lawful vote.
Age and residence are conditions of registration under Sec. 19 of the Representation of the People Act, 1950; they are qualifications/conditions for registration rather than statutory "disqualifications" under Sec. 16, and that distinction is material for whether an election tribunal may question the roll.
Authorities cited (including English precedent Stowe v. Jolliffe as considered in Indian cases) support the principle that registers (electoral rolls) are conclusive except in narrow categories (persons expressly prohibited by statute or common law).

Respondent's Arguments (in support of Election Tribunal's order)

The Election Tribunal is competent to inquire, under rule 48(a) (the words "or for any other reason was not duly elected by a majority of lawful votes" and the expression "lawful votes"), into whether persons who voted were lawfully entitled to vote — including whether their names were wrongly entered in the electoral roll because they were minors or not ordinarily resident.
Rule 48 lacks a provision analogous to Sec. 19(2)(a) of the U.P. Municipalities Act and Sec. 15(2)(a) of the U.P. District Boards Act that expressly bars inquiry into omissions or wrongful insertions in electoral rolls; that absence means no similar bar applies to elections of the Chairman under rule 48, so the Tribunal's jurisdiction includes examining enrolment correctness.
Sec. 6-F should be read as primarily governing polling procedure; it entitles a person to vote at polling if his name appears on the roll, but does not preclude a Tribunal from subsequently deciding whether a vote was lawful in the sense that the voter met the legal prerequisites for enrolment.
The wording of rule 48(a) — especially the phrase "for any other reason" and the term "lawful votes" — should be given full effect and is broad enough to authorize investigation into the fundamental legality of votes, including whether voters were properly enrolled.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Prabhakar Yajnik v. District Magistrate, Bulandshahr (1953 A.L.J. 667)	Interpretation of the word "disqualified" in Sec. 12-D of the Municipalities Act — an earlier bench had held "disqualified" meant the opposite of "qualified" (i.e., "not qualified").	The Full Bench considered and distinguished this case. Two judges disagreed with treating "disqualified" as identical to "not qualified" and held Prabhakar Yajnik's observations were not decisive for the present point; one judge relied on aspects of that case but distinguished its factual and legal scope.
Stowe v. Jolliffe (Petersfield case) (1874 L.R. 9 C.P. 734)	English principle that the register of voters is conclusive (not only for the Returning Officer but also for tribunals) except where persons are prohibited from voting by statute or by common law.	The Bench (notably M.L. Chaturvedi, J.) relied on this historical English authority to support the proposition that registers are conclusive for tribunals except in narrow categories; another judge found the English case distinguishable because of differences in statutory history.
Durga Shanker Mehta v. Raghuraj Singh (A.I.R. 1954 S.C. 520)	Supreme Court discussion noting the English position that registers are conclusive except in cases where persons are prohibited by statute or common law.	The Full Bench treated the case as not directly determinative but noted that Supreme Court observations acknowledged the English position; one judge considered this supportive of the view that registers should be final except in cases of statutory prohibition.
Mahadeo Nathuji v. Bisen Laghuji (A.I.R. 1953 Nag. 166)	Nagpur High Court holding that the electoral roll under the City of Nagpur Corporation Act is conclusive on the right of a voter to vote in a ward.	M.L. Chaturvedi, J. cited this as authority consistent with the view that a final electoral roll gives conclusiveness to entries for purposes of voting; another judge observed that that case was decided under different statutory provisions and therefore had limited application here.
Vithal Das Kunwarji v. Sadanand Jumman Fulzele (A.I.R. 1957 Nag. 63)	A Nagpur High Court decision consistent with Mahadeo Nathuji on finality of electoral roll entries for voting rights.	Referred to by M.L. Chaturvedi, J. as supportive of the proposition that published rolls are to be treated as conclusive with respect to entitlement to vote.
Shyam Kishore v. Madan Gopal Mahendra (A.I.R. 1958 All. 14)	Held that an election tribunal could consider the age of a person whose nomination paper was rejected where the ground of petition was improper rejection of nomination.	The Full Bench noted that Shyam Kishore addressed a different point (rejected nomination papers) and was not authority for whether entries in electoral rolls could be challenged; it was distinguished on its facts and scope.
Halsbury's Laws of England, Part IV (paragraph cited)	Secondary statement (summarising English law) that votes of persons not entitled to be registered because they lacked residence/service qualifications would not be questioned on a scrutiny.	Referred to by M.L. Chaturvedi, J. to support the English approach that registration is conclusive for tribunals in most instances; the Bench considered its weight but also examined statutory differences in Indian law.

Court's Reasoning and Analysis

The Full Bench comprised three judges who wrote separate reasoned opinions; two judges (Dayal, J. and M.L. Chaturvedi, J.) concluded that the Election Tribunal's order was erroneous and the writ petition should be allowed; one judge (Jagdish Sahai, J.) dissented and would have dismissed the petition. The majority's reasoning and the dissenting reasoning are summarized below, strictly confined to what is stated in the opinion.

Majority Reasoning (Dayal, J. and M.L. Chaturvedi, J.) — Core points

Statutory source of the elector's status: Clause (13) of Sec. 2 of the U.P. Town Areas Act defines "elector" as a person "whose name is for the time being entered in the electoral roll of that ward." Rule 5 (Conduct of Election of Chairman Rules, 1953) makes electors for Chairman the persons entered in the ward rolls; Sec. 6-F(1) of the Act states that every person entered in the electoral roll "for the time being" shall be entitled to vote.
Distinction between "qualification" and "disqualification": The Representation of the People Act, 1950 separately treats conditions of registration (Sec. 19 — age and ordinary residence) and disqualifications (Sec. 16 — citizenship, unsoundness of mind, disqualification under corrupt practices laws). The majority emphasized that not meeting the conditions in Sec. 19 renders a person "not qualified" for registration, but is conceptually distinct from a statutory "disqualification" under Sec. 16.
Legal effect of a finally prepared/published roll: Because the roll is prepared by the authority charged with that task and entries are to be taken "for the time being" as conclusive that persons are electors, the right to vote flows from the entry. The majority held that a vote cast by a person whose name appears on the final roll is prima facie a lawful vote unless another provision (for example, statutory disqualification or corrupt practice) renders it unlawful.
On whether an Election Tribunal can "go behind" the roll: The majority concluded that the Election Tribunal cannot inquire into and overturn entries in the electoral roll on the ground that a person did not satisfy the conditions of registration (age, residence) at the time of enrolment. In Dayal, J.'s words: "it is ... not open to the Election Tribunal to determine whether the persons whose names were entered in the electoral roll possessed the necessary qualifications for the registration of their names in the electoral roll."
Use of English authorities and legislative distinction: M.L. Chaturvedi, J. invoked English authorities (Stowe v. Jolliffe) and the statutory practice of treating qualifications and disqualifications separately to show a legislative design where entries in the roll are final in respect of qualifications, while disqualifications remain open to challenge in specified circumstances. He reasoned that Sec. 19 (conditions) and Sec. 16 (disqualifications) being in separate provisions indicates different treatment as regards finality.
On precedents and distinguishing: The majority judges reviewed prior decisions (including Prabhakar Yajnik and Nagpur High Court cases). Dayal, J. explicitly disagreed with an interpretation in Prabhakar Yajnik that equated "disqualified" with "not qualified." M.L. Chaturvedi distinguished other cases on their facts and statutory bases and relied upon the separation in the statute between conditions and disqualifications.

Dissenting Reasoning (Jagdish Sahai, J.) — Core points

Statutory construction of rule 48(a): Justice Jagdish Sahai emphasized the wide language in rule 48(a) ("that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes") and considered the phrase "for any other reason" and "lawful votes" sufficiently broad to permit an Election Tribunal to inquire into whether voters were properly enrolled.
Comparative statutory framework: He contrasted rule 48 with Sec. 19(2) of the U.P. Municipalities Act and Sec. 15(2) of the U.P. District Boards Act — both of which contain express bars on tribunals examining whether names were wrongly inserted or omitted — and noted the absence of such an express bar in rule 48. From that omission he inferred that the rule-makers did not intend to exclude tribunal jurisdiction in chairman elections under rule 48.
Role of Sec. 6-F: He read Sec. 6-F as governing polling procedure (entitling a person whose name appears on the roll to vote at polling) but not as precluding post-poll judicial examination by the Election Tribunal into whether votes were "lawful" in the sense that the voters satisfied legal requirements for enrolment.
On finality under the electoral roll revision Order: He examined rule 12 of the Town Areas (Preparation and Revision of Electoral Rolls) Order, 1953 and concluded that the "finality" clause there makes the Electoral Registration Officer's decision final only as between objections and the roll's administrative handling; it does not make rolls final against an Election Tribunal hearing an election petition.
Precedential reliance and distinction: Jagdish Sahai, J. considered prior cases (Prabhakar Yajnik, Mahadeo, Vithaldas, and English authorities) but, on his reading of the statutory text and absence of an express bar in rule 48, upheld the Election Tribunal's power to examine whether persons enrolled were properly qualified to be on the roll.

How the Court resolved conflicting views

The Full Bench (by majority) concluded that the Election Tribunal's order permitting an inquiry into whether names in the electoral roll were rightly entered (on the ground of want of qualification such as age or residence) was erroneous. The majority reasoned that the statutory scheme (U.P. Town Areas Act read with applied provisions of the Representation of the People Act) treats conditions of registration (age/residence) and statutory disqualifications differently; the entry of a name in the roll confers the right to vote "for the time being" and a tribunal may not go behind such entries to impugn qualifications that were conditions of registration. Consequently, the majority allowed the writ petition and quashed the Election Tribunal's order; the Tribunal was to proceed to decide the election petition according to law.

Holding and Implications

Holding: The Full Bench (by majority) held that the impugned order of the Election Tribunal dated 29 April 1958 was erroneous and issued a writ of certiorari quashing that order. The Tribunal was directed to proceed to decide the election petition according to law.

Implications

Direct effect on the parties: The Election Tribunal's preliminary finding that it could examine and strike down entries in the electoral roll on the ground that certain persons were minors or non-residents was quashed. The Election Tribunal must continue to decide the underlying election petition in accordance with law, subject to this ruling.
Legal consequence explained in the opinion: The majority's decision treats the entry of a name in the finally prepared electoral roll as conferring the right to vote "for the time being," and the Election Tribunal, in the context of a Chairman's election under the statutory scheme considered, may not go behind the roll to re-evaluate whether such persons satisfied the conditions of registration (age/residence). Disqualifications expressly enumerated by statute (e.g., Sec. 16 of the Representation of the People Act) remain matters that can be considered under appropriate provisions.
Broader precedent: The Court's order establishes the majority view in this Full Bench that the electoral roll's entries are final as to the conditions of registration for the purposes described in the opinion. The opinion contains detailed reasoning and discussion of authorities (English and Indian) and distinguishes several precedents. The judgment does not purport to announce a new general statutory amendment; it resolves the specific contested jurisdictional question raised in this petition.

Note: This summary reproduces and synthesizes only the reasoning, holdings, arguments and authorities expressly contained in the provided opinion. No information beyond the text of that opinion has been added or inferred.

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Mohiuddin v. Election Tribunal For Town Area

Dayal, J.:— I agree with brother Chaturvedi that this writ petition be allowed and that a writ of certiorari be issued quashing the impugned order of the Election Tribunal. In view of the importance of the question, I would like to note in brief my reasons for coming to that conclusion.

2. The question is whether the Election Tribunal hearing an election petition challenging the election of the Chairman of the Town Area Committee can look into the contention that the names of certain persons should not have found a place in the electoral rolls prepared for certain wards in the Town Area on the grounds that some of them were minors and that some did not reside within the wards concerned. The Election Tribunal in this case considered whether the finality attached to the electoral roll applied to preelection stage or also to the past-election stage and held that it applied to the preelection stage. He came to the same conclusion on considering the effect of the latter provision in clause (a) of paragraph 48 of the Notification No. 165 IX (E)-I-T-47 dated February 26, 1948 printed at page 23 of the Government of Uttar Pradesh, Statutory Provisions and Rules and Notifications Re: Election Petitions relating to Municipal Boards, Town Areas and Notified Areas. Paragraph 48 is:

“48. The election of any person as chairman or member of the committee may be questioned on any of the following grounds—

(a) that such person was declared to be elected by reason of the improper rejection or admission of any or more votes, or for any other reason was not duly elected by a majority of lawful votes;

(b) that such person committed a corrupt practice as defined in rule 49 below for the purpose of the election;

“(c) that such person was not qualified to be nominated as a candidate for election or that the nomination paper of a petitioner was improperly rejected.”

3. He expressed his reasons thus:

“If the electoral rolls are regarded as final and conclusive, all the persons who voted on the basis of those rolls would be treated as lawful votes and there is no question of there being any unlawful votes. A vote can be unlawful only if it offends against any of the provisions of the Act or Rules, and if for the decision thereof it has to be seen whether the vote was lawful or unlawful then certainly the electoral roll cannot be regarded as final and conclusive at the time of the hearing of election petitions.”

4. The contention for the appellant is that the electoral roll prepared is not open to question with respect to the correctness of the entries noted therein, though the Election Tribunal can consider whether any of the persons entered in that roll suffered from any disqualification and that the fact that a person had not attained the age of 21 years or did not reside within the particular ward does not amount to disqualification. I agree with this contention. Sub-sec. (2) of Sec. 8-A of the U.P Town Areas Act, 1914 (hereinafter referred to as the Act) is:

“The chairman shall be elected by the electors of the town area at an election held simultaneously with the general election of members of the committee.”

5. Sub-sec. (4-A) of Sec. 8-A of the Act is:

“No election of the Chairman shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by or under this Act.”

6. Rule 5 of The Uttar Pradesh Town Areas (Conduct of Election of Chairman) Rules, 1953 is:

“Electors for election of Chairman— The electors in a town area shall for the purpose of election of the chairman, be the electors entered in the electoral rolls of the wards of that town area and it shall not be necessary to prepare or revise separately the electoral rolls for the election of the Chairman.”

7. Clause (13) of Sec. 2 of the Act provides:

“‘elector’, in relation to a ward, means a person whose name is for the time being entered in the electoral roll of that ward.” It follows therefore that the electors for the purpose of election of the Chairman are the persons whose names are for the time being entered in the electoral rolls of the wards of the Town Area. The expression “for the time being” is significant and can only mean that the entries are to be taken as final for the purpose of holding that those persons are the electors of the Town Area. The status of an elector is given by the entry of the name in the electoral roll.

8. Sec. 6-F of the Act is:

“(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any ward, shall be entitled to vote in that ward.

(2) No person shall vote at an election in any ward if he is subject to any of the disqualifications provided for by or under this Act.

(3) No person shall vote at a general election in more than one ward, and if a person votes in more than one such ward, his votes in all such wards shall be void.

(4) No person shall at any election vote in the same ward more than once, notwithstanding that his name may have been registered in the electoral rolls for that ward more than once, and if he does so vote, all his votes in that ward shall be void.

(5) No person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the Police:

Provided that nothing in this sub-section shall apply to a person subject to detention under any law for the time being in force.”

9. These provisions also mean that every person whose name is for the time being entered in an electoral roll has the right to vote. His right to vote cannot therefore be questioned at any stage—be it at the time of the election or at the stage of the hearing of the election petition after election. His right is however taken away if for any reason he happens to be subject to any of the disqualifications provided for by or under the Act.

10. This therefore takes us to the determination of what are the disqualifications which take away the right of voting from an elector, that is, a person whose name is for the time being entered in the electoral roll of a ward. Sub-secs. (3), (4) and (5) of Sec. 6-F of the Act provide other circumstances which take away the right of a person to vote on the basis of the entry of his name in the electoral roll. He cannot take advantage of his name being entered in the rolls of several wards by voting as many times as be the number of the entries. He can vote only in one ward and in case he votes in more than one ward his votes in all such wards become void. Similarly, a person whose name is entered more than once in the electoral rolls of a particular ward cannot vote as many times as be the number of the entries but can only vote once and if he votes more than once all his votes become void. These provisions further make it clear that, in the first place, it is the existence of a person's name in the electoral roll of a ward which gives him the right to vote and that this right is taken away completely if the aforesaid sub-sections apply to him, and that his right to vote on the basis of several entries, be they in the rolls of different wards or in the roll of the one particular ward, is subject to the condition that he can vote only once. In the present case, we are not concerned with the provisions of sub-secs. (3), (4) and (5) affecting the validity of the votes cast. We are concerned with the question whether the voters who had not attained the age of 21 years or who did not reside within the ward in whose electoral rolls their names were recorded suffer from a disqualification contemplated by sub-sec. (2) of Sec. 6-F of the Act.

11. Sec. 6-H of the Act empowers the State Government to apply, by Order, to an election under the Act the provisions of the U.P Municipalities Act, 1916 regarding preparation and publication of electoral rolls for each ward including qualifications and disqualifications for registration in the electoral rolls. Secs. 12-F, 12-H of the Municipalities Act have been applied to an election under the Act. Sec. 12F of the Municipalities Act is:

“12-C. Subject to the provisions of Sec. 12-D, every person who is qualified to be registered in the Assembly electoral roll relatable to the area comprised in the ward or whose name is entered therein shall be entitled to be registered in the electoral roll of the ward.”

12. Sec. 12-D is:

“12-D. (1) A person shall be disqualified for registration in an electoral roll if he is disqualified for registration in the Assembly rolls.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electrol roll of the ward in which it is included;

Provided that the name of any person struck off the electoral roll of a ward by reason of disqualification under sub-sec. (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under the provisions of this Act, or under any other law authorizing such removal.”

13. Sec. 16 of the Representation of the People Act, 1950 (XLIII of 1950) is:

“Disqualifications for registration in an electoral roll—(I) A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt and illegal practices and other offences in connection with elections.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included.

Provided that name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-sec. (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.”

14. This section does not mention that a person who has not attained the age of 21 years or who does not reside within a constituency is disqualified for registration in an electoral roll of that constituency. Sec. 17 and 18 provide against a person being registered more than once either in the same constituency or in different constituencies. Sec. 19 is:

“Condition of registration—Subject to the foregoing provisions of this Part, every person who—

(a) has been ordinarily resident in a constituency for not less than 180 days during the qualifying period, and

(b) was not less than 21 years of age on the qualifying date.

15. Shall be entitled to be registered in the electoral roll for that constitutency.” The age and residence therefore were considered as conditions for registration. A person got the right to be enrolled or was qualified to be enrolled in an electoral roll if he was not less than 21 years of age and if he had resided for the prescribed period in a particular constituency. A person's non-residence for the prescribed period or not attaining the age of 21 years is not his disqualification for registration but amounts to his being not qualified to be registered. So long as one is not qualified no question of disqualification arises. According to Murray's New English Dictionary, ‘disqualification’ means “the action of depriving of requisite qualifications” and ‘to disqualify’ means ‘to deprive of the qualifications required for some purpose. “A disqualification is therefore not identical with the absence of qualification. It is further to be noticed that sub-sec. (2) of Sec. 16 of the Representation of the People Act provides for the striking off of the name from the electoral roll of a person who becomes disqualified after registration and does not provide for the striking off of the name of a person who was disqualified but whose disqualification could not be discovered at the time of entering his name in the electoral roll. His disqualification could be considered by the Election Tribunal if he had exercised his right to vote on the basis of the entry of his name in the electoral roll of a particular constituency.

16. The Election Tribunal held that the reverse of the qualifications mentioned in Sec. 17, 18 and 19 of the Representation of the People Act would amount to a disqualification. This view finds support from the case of Prabhakar Yajnik v. Dis. Magis., Bulandshahr 1953 A.L.J 667. wherein Mootham, J. (as he then was) had to consider the scope of the expression “disqualification” in Sec. 12-D of the Municipalities Act and said at page 669:

“The conclusion which I have reached, although not without some hesitation, is that in S. 12-D of the Municipalities Act the word ‘disqualified’ is used as meaning the opposite to ‘qualified’, that is as meaning ‘not qualified’.”

17. With respect, I do not agree with this interpretation for the reasons mentioned above. It is true that the name of a person who suffers from any of the disqualifications mentioned in Sec. 16 will not be entered in the electoral roll though he satisfies the conditions of registration and therefore the result would be the same as would be if the person did not satisfy the conditions of registration mentioned in sec. 19. But the rationale of the non-entry is different in the two cases. In the former case a person satisfies the conditions and therefore has the right to have his name entered in the electoral roll and it is due to the disqualification that his name is not entered. Notionally it can be said that on the basis of his right his name had been entered but had been removed on account of the disqualification, though this will not be exactly correct as sub-sec. (2) of Sec. 16 does not provide for the removal of the name of a person who had the disqualification prior to the registration of his name in the electoral roll.

18. Sec. 19 of the Municipalities Act has been made applicable to the election of members of the Town Area. Its sub-sec. (1) is practically the same as paragraph 48 of the Notification governing the election petitions questioning the election of Chairman of a Town Area. Its sub-sec. (2) is:

“(2) The election of any person as, a member of a Town Area Committee shall not be questioned—

(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls

(b) on the ground of any non-compliance with this Act or any rule, or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election.” The absence of any similar provision in the afroesaid paragraph 48 is relied upon for the respondents in support of the contention that the election of a Chairman is open to question on the ground that the name of a person not qualified to vote had been inserted in the electoral roll or rolls. I am of opinion that no such inference can be drawn from a mere omission unless a ground for challenging the election can be deduced from the grounds of challenge mentioned in paragraph 48. The relevent portion of this paragraph relied upon for the purpose is the ground that such person for any other reason was not duly elected by a majority of lawful votes. The contention is that if a person was not entitled to have his name entered in the electoral roll he could not cast a lawful vote and therefore the Election Tribunal could look into this question. I do not agree. A lawful vote is one which is cast by a person who had the right to vote in circumstances which do not in any way invalidate the vote. I have already mentioned that the right to vote is given by sec. 6-F of the Act to a person who is for the time being entered in the electoral roll of any ward. If a person whose name is entered on the roll votes, his vote is prima facie a lawful vote. It can become an unlawful vote for various reasons. It would be an unlawful vote if any of the provisions of sub-sec. (2) to (5) of sec. 6-F affect the validity of the vote. It can also be an unlawful vote if it has been obtained by corrupt practice. It cannot however be an unlawful vote merely on account of the fact that the person had no right to have his name entered in the electoral roll. The right to vote is not on account of his having attained a certain age or on account of his having resided in a certain constituency for the prescribed period but is conferred by sub-sec. (1) of sec. 6-F of the Act and is simply based on account of existence of his name in the electoral roll of any ward. The vote of a person having a right to vote is therefore a lawful vote, and it is therefore not open to the Election Tribunal to go behind the electoral roll to determine whether the entry of the persons named in the electoral roll was rightly made or not. In this connection we have been referred to sec. 6-A of the Act which provides that the election of the members of a Committee shall be on the basis of adult suffrage. The view I take does not in any way offend this provision. The election is on the basis of adult suffrage as the entries in the electoral roll are on that basis. The mere fact that the name of a person has been wrongly entered in the electoral roll when he had not attained a particular age does not make the election to be on any other basis. Sec. 6-F of the Act provides that no person who is not for the time being entered in the electoral roll of any ward shall be entitled to vote in that ward. Taking the two Secs. 6-A and 6-F together, the only conclusion that can be formed is that it is the provisions of Sec. 6-F which determine the right of a person to vote and it is not the fact of his actually becoming an adult which gives him the right to vote. In this connection I may mention that there is nothing in the Act which lays down what the requirements of adult suffrage are. Art. 326 of the Constitution does not stop after providing that the election will be on the basis of adult suffrage but explains this provision by saying; ‘that is to say, every person who is a citizen of India and who is not less than twenty-one 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’.

19. I am therefore of the opinion that it was not open to the Election Tribunal to determine whether the persons whose names were entered in the electoral roll possessed the necessary qualifications for the registration of their names in the electoral roll.

20. M.L Chaturvedi, J.:— This petition has been ordered to be laid before a Full Bench for hearing, because the Bench, which heard it, was of the opinion that the view taken in a previous Division Bench case, namely, Prabhakar Yajnik v. The Dis. Magis., Bulandshahr needed further consideration.

21. The facts of the case in brief are that the petitioner and the 2nd respondent were candidates for election to the office of Chairman, Town Area Committee, Sakit, district Etah, in the general elections held in October 1957. The petitioner was declared to be the duly elected candidate as he received 581 votes as against the 2nd respondent who received 569 votes. The 2nd respondent then filed an election petition challenging the validity of the petitioner's election on a number of grounds. The Temporary Civil and Sessions Judge of Etah was appointed-to hear and decide the election petition. The petitioner filed a written statement before him challenging the correctness of the allegations made by the 2nd respondent in his election petition. The election tribunal framed a number of issues in the case, but we are concerned in the present writ petition only with one of them, namely, issue no. 3, which is in the following words:—

“is the petitioner entitled to challenge the enrolment and addition of the voters of Schedule A, B, C and D in the electoral rolls at this stage. Its effect?”

22. The allegation of the 2nd respondent in the election petition, which gave rise to the above issue, was that the names of a number of persons who were minors and of others who were not residents within the limits of the Town Area were wrongly added in the electoral rolls prepared for the Town Area. The petitioner denied that any names of minors or non-residents had been added in the electoral roll and further pleaded that the electoral roll was final and its correctness could not be challenged in the proceedings of the election petition. The election tribunal heard the arguments on this issue treating it to be a preliminary issue and decided it against the petitioner by the impugned order dated the 29th April, 1958. The election tribunal has arrived at the conclusion that it is open to the 2nd respondent to raise the question in the election petition that the electoral roll had been wrongly prepared.

23. In the present writ petition the correctness of this order has been challenged and it is prayed that this Court should issue a writ of certiorari quashing the order of the election tribunal.

24. The learned counsel for the petitioner has urged that there is an apparent error in the judgment of the election tribunal and the tribunal is clearly wrong in holding that the correctness of the electoral roll could be challenged in an election petition. The learned counsel for the 2nd respondent has tried to support the decision of the election tribunal on the point. The only question that arises for consideration by us is whether an election tribunal can go into the question that the names of some of the persons had been wrongly entered in the electoral roll, when the persons were not qualified to have their names so entered.

25. In order to appreciate the controversy it is necessary to mention the relevant provisions of law on the point. The elections were held for choosing the Chairman of the Town Area of Sakit, in the district of Etah. The electoral rolls in the Town Areas situate in this State are to be prepared under the relevant provisions of the U.P Town Areas Act No. II of 1914, as amended from time to time. It is not necessary to refer to earlier amendments made in the Act before the U.P Act No. V of 1953 was passed. By the latter Act, substantial amendments were made in the U.P Town Areas Act. Sec. 6-A lays down that the election of the members of a Town Areas Committee shall be on the basis of adult suffrage. Sec. 6-B says that for purposes of elections there shall be wards provided by Order issued under Sec. 6-H. Sec. 6-C lays down that there shall be an electoral roll for every ward which shall be prepared in the manner provided for by or under the Town Areas Act. The next section which may be referred is Sec. 6-F which makes provision as regards the persons who shall be entitled to vote in the ward. Sec. 6-H provides that the State Government may, by order, apply to an election under the Act the provisions of the U.P Municipalities Act of 1916 regarding delimitation of wards for purposes of elections, preparation and publication of electrol rolls for each ward including qualifications and disqualifications for registration in the electoral rolls, conduct of elections, the removal of disqualifications, the decision on doubts or disputes relating to elections and certain other matters. Sec. 6-1(1) bars the jurisdiction of civil courts to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll of a ward, or the legality of any action taken by or under the authority of an Electoral Registration Officer or to question the legality of any action taken or any decision given by the Returning Officer. Sub-Sec. (2) says that no election can be called in question except by an election petition presented in accordance with the provisions of the Act. Sec. 6-J provides for qualifications for membership of the Committee, and Sec. 6-K provides from disqualifications from being chosen as a member or Chairman of the Committee. The last relevant section is Sec. 8-A which makes certain provisions concerning the election, duties and other matters pertaining to a Chairman. Sub-sec. (1) provides that the Chairman shall be an elector of the Town Area. Sub-Sec. (2) says that the Chairman shall be elected by the electors of the Town Area at an election held simultaneously with the general election of members of the Committee. Sub-sec. (3) lays down how a vacancy in the office is to be filled and sub-sec. (4) says that the term of office of a Chairman shall expire on the expiry of the term of the Town Area Committee. Sub-Sec. (4-A) says,

“No election of the Chairman shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under this Act.”

26. With the rest of the sub-section we are not concerned.

27. It would appear that under the Town Areas Act the election of the members of a Committee is to be held on the basis of adult suffrage and there shall be an electoral roll prepared in the manner provided by or under the Act. The Act itself does not lay down the procedure for the preparation of the electoral roll and authority in that respect has been conferred on the State Government under clause (b) of Sec. 6-H. The Government framed separate rules under the Town Areas Act for the conduct of elections of members and of Chairman. There was also an Order issued called the Town Areas (Preparation and Revision of Electoral Rolls) Order, 1953. It is not necessary to go into details of the above rules and orders for our present purposes.

28. I have already stated that under Sec. 6-H (a) and (b) the State Government was authorised to apply the provisions of the U.P Municipalities Act regarding delimitation of wards for purposes of elections and preparation and publication of electoral rolls for each ward, including qualifications and disqualifications for registration in the electoral rolls. Under the above provision, the U.P Government issued a notification on the 8th April, 1953 applying amongst others, the provisions of Sec. 12-B to 12-H of the Municipalities Act to the Town Areas Act. Secs. 12-C and 12-D are important. Sec. 12-C says that every person who is qualified to be registered in the Assembly electoral roll relatable to the area comprised in the ward, or whose name is entered therein, shall be entitled to be registered in the electoral roll of the ward. Sec. 12-D says that a person shall be disqualified for registration in the electoral roll if he is disqualified for registration in the Assembly electoral rolls. For elections of Municipal Boards the Legislature thus accepted the Assembly electoral rolls as the electoral rolls for the relative areas of the Municipal Board. By the application of Sec. 12-C and Sec. 12-D to the Town Areas, the same rolls became the rolls for electing members and Chairman of the Town Areas Committee. Thus for finding out the qualifications and disqualifications for entry in the rolls for elections to Town Areas, we have to go to the Representation of the People Act of 1950. Sec. 16 of the said Act lays down the disqualifications for registration in an electoral roll and Sec. 19 lays down the conditions of registration, which are only two, namely, the minimum age limit of 21 years and the ordinary residence in a constituency. This disqualifications mentioned in Sec. 16 are three, which need not be detailed. Apart from Secs. 16 and 19 of the Representation of the People Act, Sec. 6-A of the Town Areas Act further says that the election of the members of a Committee shall be on the basis of adult suffrage.

29. It would thus appear that the Representation of the People Act has separately provided for the conditions which a person must fulfil before he would be entitled to have his name entered in the electoral roll and the disqualifications which would disqualify him from having his name so entered, even if he fulfils the conditions. The contention of the learned counsel for the petitioner is that the entries in the electoral roll are final and not open to challenge in an election petition, in so far as they indicate that a person has fulfilled the conditions or qualifications for living his name brought on the electoral roll, but they are not final and are open to scrutiny by an election tribunal in so far as the allegation that the persons are disqualified from voting is concerned. In short, the electoral roll is to be deemed final and conclusive as far as the fulfilment of qualifications of a voter is concerned, but it is not to be deemed final and conclusive by the election tribunal so far as the disqualifications attaching to such persons are concerned. I think that there is substance in the contention of the learned counsel.

30. The subject of election petitions is dealt with in sec. 1 of Part IV of Halsbury's Laws of England, Vol. 14, 3rd Edition. Item (vii) deals with scrutiny and after considering its history it is stated at the bottom of paragraph no. 544,

“Accordingly it would appear that the votes of persons who were not entitled to be registered because they did not have a resident or non-resident or a service qualification would not be questioned on a scrutiny.”

31. The above statement is based on two cases. I propose to refer to only the latter of the two cases, namely, Petersfield case Stovwe v. Jalliffe 1874 L.R 9 C.P 734.. After a consideration of the history of legislation on the point, Lord Coleridge, C.J expressed the opinion that from the Reform Act to the Ballot Act the tendency of legislation had been to make the register of voters conclusive, with certain exception. He then says at page 750.

“I think the true constructions of these sections, which alone remain, is, to make the register conclusive not only on the Returning Officer, but also on any Tribunal which has to enquire into elections, except in the case of persons ascertained by the proviso. These are, ‘persons pro hibited from voting by any statute or by the common law of Parliament’.”

32. The law laid down above still holds the field in England and it is well settled there that it is not open to a Tribunal which has to enquire into elections to consider the correctness of the entry in a register of voters, except in so far as to see whether the person whose name is entered was prohibited from voting by any statute or by the common law of Parliament. I think the Representation of the People Act has adopted the same principle and that is the reason why separate provisions have been made laying down the conditions of registration in the electoral roll for Assembly constituency and those laying down disqualifications for registry in the roll. Sec. 19 of the Act deals with the former and Sec. 16 with the latter. As far as the preparation of the electoral roll itself is concerned, the authority responsible for its preparation has got to consider both matters. It has to see whether a citizen fulfils the conditions of registration and also whether he is disqualified for registration in the roll. There was no reason for providing for the above two matters under two separate sections of the Act so far as the preparation of the roll was concerned. It could easily have been said under Sec. 16 that a person shall be disqualified for registration in the electoral roll if he was less than 21 years of age and if he did not ordinarily reside in the constituency. The only reason for making two separate provisions about qualifications and disqualifications, in my opinion, is that the two have been treated differently, as in England, so far as the binding nature of the entry in the electoral roll is concerned. If a person's name has been entered in the electoral roll, as it has been finally prepared, the entry would be taken to be conclusive proof of the fact that the person fulfils the conditions, namely, that he was not less than 21 years of age and was ordinarily resident in the constituency. But the position with respect to the disqualifications enumerated in Sec. 16 of the Representation of the People Act is different. In spite of the entry in the electoral roll, it is open to an election tribunal to see whether the person was really disqualified for registration in the roil. Finality has been given to be decision of the Officer preparing the roll in so far as the fulfilment of conditions of registration is concerned. But it has not been considered desirable to extend the same finality to the decision on the subject of disqualifications; as the latter is a more serious matter. The U.P Town Areas Act is quite explicit on the point. Sec. 6-F (1) says,

“No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any ward, shall be entitled to vote in that ward.”

33. The above provision confers a right on a person, whose name is entered in the electoral roll, to exercise his franchise. The right to vote that has been conferred is simply by virtue of the fact that his name is entered in the electoral roll. This obviously means that it is not possible to go behind the roll either for proving that a person's name should have been entered but has been wrongly omitted or for showing that a person's name should not have been entered but has been wrongly entered. If the above provision of law had stood by itself, it might have been possible to say that the election tribunal could not consider even the question whether a person had any disqualifications which disentitled him to have his name entered in the electoral roll. But, following the English practice, it has been provided in sub-sec. (2) that

“(2) No person shall vote at an election in any ward if he is subject to any of the disqualifications provided for by or under this Act.”

34. This is in the nature of an exception to sub-sec. (1), and the exception is confined to persons suffering from disqualifications. Sec. 6-F was inserted in the U.P Town Areas Act in 1953 and it can be presumed that the Legislature was aware of the fact that in the Representation of the People Act qualifications and disqualifications were separately dealt with in Secs. 16 and 19. Still sub-sec. (2) of Sec. 6-F of the Town Areas Act imposes a restriction on the right of voting on persons subject to disqualifications and not on persons not fulfilling the qualifications or conditions of registration in roll.

35. So far the position appears to be clear, but the learned counsel for the respondent laid stress on the wording of rule 48 framed by the Government under Sec. 6-H of the Town Areas Act. These rules were subsequently validated by U.P Act No. XIX of 1955. The language of rule 48 in all material particulars is the same as of Sec. 19(1) of the U.P Municipalities Act. Sec. 19(1)(b) is in the following words:—

“That such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes.”

36. Stress has been laid on the words of “lawful votes” and it is argued that votes cast by persons, who were not qualified to be entered in the electoral roll, cannot be said to be lawful votes. I think that in construing the above words we have to refer back, for purposes of the Town Areas Act, to Sec. 6-F(1) wherein it is stated that every person who is, for the time being entered in the electoral roll of any ward, shall be entitled to vote in that ward. To my mind; it is no straining of language to say that the vote of such a person would be a lawful vote. It is true that Sec. 6-A of the Town Areas Act lays down that the election of the members shall be on the basis of adult suffrage, and Sec. 19 of the Representation of the People Act lays down that the minimum age for entry in the electoral roll is 21 years. But that is a matter which has been left for the authority preparing the electoral roll to decide finally. This mere entry thus means that a person has fulfilled the necessary qualifications or conditions of enrolment and it is not open to objection at any subsequent stage, after the electoral roll has become final, the person so entered really did not fulfill the conditions. His member being there, it must be taken that he, fulfils the conditions; The Nagpur High Court has taken the same view in the cases of Mahadeo Nathuji v. Bisen Laghuji A.I.R 1953 Nag. 166., and Vithal Das Kunwarji v. Sadanand Jumman Fulzele A.I.R 1957 Nag. 63..

37. The learned counsel for the respondent relied upon two cases of this Court. The first case mentioned by him is the case of Prabhakar Yajnik v. The District Magistrate, Bulandshahr. The facts of this case are clearly distinguishable from the facts of the case before me. Prabhakar Yajnik's name was ordered to be removed from the Municipal electoral roll by the Electoral Registration Officer and Sri Yajnik approached this Court with a writ petition praying for the quashing of the order removing his name. The question that arose was whether the Electoral Registration Officer had jurisdiction to remove the name and this Court held that he had jurisdiction to do so. What this Court had to decide in Prabhakar Yagnik's case was whether the Electoral Registration Officer had jurisdiction to remove the name on the ground of want of qualifications. But the question before me in the present case is whether the election tribunal can go into the question that a person whose name stood on the electoral roll did not fulfil the conditions for the entry of his name. In the course of the judgment, the learned Judges have made certain observations to the effect that there did not appear to be any difference between saying that a person was not qualified and saying that he was disqualified. I think there is a difference between the two and that difference I have already indicated above. The exact point however, decided in that case does not arise for decision in the present petition.

38. The other Allahabad case cited by the learned counsel is the case of Shyam Kishore v. Madan Gopal Mahendra A.I.R 1958 Alld. 14.. This case arose out of an election petition by a candidate for the presidentship of the Municipal Board of Sitapur, whose nomination paper had been rejected by the Returning Officer on the finding that he had not attained the age of 30 years.

39. He filed the election petition on the ground that his nomination paper had been improperly rejected by the Returning officer. The election petition was allowed on the finding that the decision of the returning officer was worry and the petitioner had attained the age of 30 years.

40. A writ petition was then filed challenging the order of the election tribunal and the contention was that the election tribunal had no jurisdiction to arrive at a finding as to the age of the respondent on the basis of additional evidence recorded by it. This Court held that it was open to the election tribunal to consider the question of age of the person whose nomination paper had been rejected, because one of the grounds on which the election petition could be filed was that the nomination paper of the petitioner was improperly rejected. It was further observed that the rejection of a nomination paper had been previously held to be a ground even falling within the expression “was not elected by a majority of the lawful votes.” The question before me in the present case is clearly different, and the Division Bench, which decided Shyam Kishore's case, did not consider and was not called upon to consider whether the entry of the name in the electoral roll could be challenged before the election tribunal on the ground that the person whose name was so entered did not fulfil the necessary conditions. It was called upon mainly to consider whether the ground could be said to fall within the expression “the nomination paper was improperly rejected” and it answered the question in the affirmative. That case also thus does not help the respondent.

41. The last case cited by the learned counsel for the respondent is the case of Durga Shanker Mehta v. Raghuraj Singh A.I.R 1954 S.C 520.. In this case one of the questions for decision was whether it was open to the election tribunal to allow the election petition on the ground that the Returning Officer had improperly accepted the respondent's nomination paper. The case was governed by the Representation of the People Act of 1951, which lays down, in Sec. 100, the grounds on which the election of a member to a Legislative Assembly or Lok Sabha can be challenged. The learned Judges held that in that case the election tribunal could not allow the election petition on the ground that the nomination paper had been wrongly accepted by the Returning Officer, but it could have allowed the election petition on the ground of constitutional disqualifications of the candidate. This case also does not, in any way, help the respondent, as the points for decision were very different. But there is an important observation in the judgment-which to some extent supports the view that I have taken above. Their Lordships say,

“The English law after the passing of the Ballot Act of 1872 is substantially, the same as has been explained in the case of stowe v. Jolliffe. The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament.”

42. Their Lordships did not say that the law in India in this respect is different from that of England.

43. For the reasons given above, I have come to the conclusion that the impugned order of the election tribunal is clearly erroneous. I would accordingly allow this writ petition with costs and direct the issue of a writ of certiorari quashing the impugned order of the election tribunal.

44. Jagdish Sahai, J.:— I have read with the greatest respect the learned judgments of my brothers Dayal and Chaturvedi, but for reasons which I shall state in this judgment I am unable to agree with their views and, therefore, it has become necessary for me to give my reasons for the disagreement and to express my own views in respect of the matter which has been referred to us in a separate judgment.

45. It is not necessary to give in details the facts giving rise to the present case. It is sufficient to state that the petitioner was declared duly elected chairman of the Town Area Committee, Sakit, defeating the respondent No. 2. The respondent No. 2 filed an election petition challenging the election of the petitioner on several grounds. One of the grounds of the respondent No. 2 in the election petition was that the names of a number of persons who were minors and of others who were not residing within the limits of the Town Area of Sakit had been wrongly added in the electoral roll prepared for the said Town Area. The petitioner denied the allegations mentioned above and also raised a legal plea that the electoral roll was final and its correctness could not be challenged in the proceedings before the election tribunal. The election tribunal framed several issues in the case. Issue No. 3 runs as follows:

“Is the petitioner entitled to challenge the enrolment and addition of the voters of Schedule A, B, C, and D in the electoral rolls at this stage? Its effect?”

46. Treating this issue as a preliminary issue the election tribunal decided it against the petitioner on 29-4-1958 holding that the tribunal could go into the question whether certain persons whose names were entered in the electoral roll were lawful voters or not. The present writ petition is directed against the finding of the election tribunal on this issue, and the prayer in the petition is for the quashing of the order of the election tribunal mentioned above by this Court by means of a writ of certiorari. There is also a prayer for the issue of a writ of mandamus or order or direction in the nature of mandamus directing the election tribunal to decide the election petition in accordance with the directions of this Court. This petition came up for hearing before a Division Bench of this Court who by their order dated 30th of July 1958 have referred the case to a Full Bench, and the petition has accordingly been listed before us for hearing.

47. The main question for decision in the case is whether under the provisions of the U.P Town Areas Act and the Rides framed thereunder it is permissible for an election tribunal to go into the question whether the names of certain persons entered in the electoral roll were rightly or wrongly entered. It is well known that the right to get elected as the chairman of a Town Area Committee is not a common law right; it is a right created by the U.P Town Areas Act. Similarly, the right to challenge an election is also not a common law right and must be exercised within the limitations imposed by the Act or the Rules creating that right. Sec. 8(4A) of the U.P Town Areas Act runs as follows:

“No election of the Chairman shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under this Act.”

48. rule 48 of the Rules framed under the U.P Town Areas Act (hereinafter referred to as the Rules) deals with election petitions relating to the election of the chairman. It runs as follows:—

“The election of any person as Chairman or member of the committee may be questioned on any of the following grounds—

(a) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other person was not duly elected by a majority of lawful votes;

(b) that such person committed a corrupt practice as defined in rule 49 below for the purpose of the election;

(c) that such person was not qualified to be nominated as a candidate for election of that the nomination paper of a petitioner was improperly rejected.”

49. It may be mentioned that this rule does not now apply to the election of a member of the committee because Secs. 19 to 28 of the U.P Municipalities Act have been made applicable to Town Areas elections under Sec. 6-H of the U.P Town Areas Act and, therefore, the words “or member” in the beginning of rule 48 are redundant. However, that does not in any way affect the question that is for consideration before us. I am of the opinion that the words “or for any other reason was not duly elected by a majority of lawful votes” occurring in clause (a) of rule 48 of the Rules are wide enough to include the investigation of the question of the right of a person to be entered in the electoral roll. It would be noticed that the expression “or for any other reason” is extremely wide. One of the rules of interpretation of statutes is that effect must be given to every word appearing in a section or rule. The substance of cl. (a) of rule 48 of the Rules, to my mind, is that it would be lawful for a petitioner to challenge the entry of a person's name in the electoral roll, and for the election tribunal to determine whether or not his name could be entered on the electoral roll under the law. I find nothing in cl. (a) of rule 48 of the Rules which limits the right of the petitioner to urge, and that of the election tribunal to hold, that a particular person declared elected has not been elected by a majority of lawful votes because some persons whose names have been entered on the electoral roll could not be voters under the law. I consider the use of the words “for any other reason” by the legislature as denoting that, on whatsoever a ground, the legality of a vote may be challenged. If the intention was not to keep the jurisdiction of the election tribunal so wide I fail to see why the legislature used this expression which necessarily has a very wide import. The expression “lawful votes” also to my mind is a very wide expression and the tribunal cannot be precluded from going into the question of the legality of a vote to its very root. In this connection it is worthy of note that in the U.P Municipalities Act as also the U.P District Boards Act where provisions similar to rule 48(a) exist a sub-section in the nature of a proviso has been added which curtails the effects of the words “or for any other reason was not duly elected by a majority of lawful votes.” Sec. 19 of the U.P Municipalities Act, which deals with an election petition relating to the election of a member of a Municipal Board and which is similar to rule 48 of the Rules, runs as follows:

“Power to question municipal election by petition.—(1) The election of any person as a member of a board may be questioned by an election petition on the ground—

(a) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes;

(c) that such person was not qualified to be nominated as a candidate or election or that the nomination paper of the petitioner was improperly rejected.

(2) The election of any person as a member of a board shall not be questioned—

(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls;

50. A provision analogous to sub-sec. (2) of Sec. 19 of the U.P Municipalities Act does not find place in rule 48 of the Rules. By virtue of the provisions of clause (a) of sub-sec. (2) of Sec. 19 the question whether “the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls” cannot be gone in to by an election tribunal created under the provisions of the U.P Municipalities Act.

51. It would be noticed that the provisions of Sec. 19 of the U.P Municipalities Act apply also to election petitions relating to the election of a person as a member of a Notified Area. Therefore, with regard to Notified Areas also there is a definite provision which debars the election tribunal from entering into the question of the correctness or otherwise of an entry in the electoral roll.

52. The provisions of Sec. 15 of the U.P District Boards Act are similar to rule 48 of the Rules. The said Sec. 15 runs as follows:

“Power to question election by petition.—

(1) The election of any person as a member of a board may be questioned by an election petition on the ground—

(a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Sec. 34: or

(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason was not duly elected by a majority of lawful votes; or

(c) that such person, though enrolled as an elector, was disqualified for election under the provisions of Sub-sec. (2) of Sec. 12:

(d) that such person was not qualified to be nominated as a candidate for election or that the nomination paper of the petitioner was improperly rejected.

(2) The election of any person as a member of a board shall not be questioned—

(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in, the electoral roll or rolls;

(b) on the ground of any “non-compliance with this Act or any rule or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election.”

53. It would be noticed that clause (b) of Sec. 15(1) of the U.P District Boards Act is similar to clause (a) of rule 48 of the Rules. There is, however, in Sec. 15(2) of the U.P District Boards Act a clause similar to one in Sec. 19 of the U.P Municipalities Act, but an analogous provision is not to be found in rule 48 of the Rules. The election of the president of either a Municipal Board or a District Board is not a direct election but an indirect election i.e, they are elected by the members of the Municipal Board or the District Board as the case may be and not by the general public. There is therefore no question of there being any provision which may enable an election petition being filed on the ground of a person's name having been omitted from or a person's name having been wrongly entered in the electoral roll. Consequently there is no provision in Sec. 43-B of the U.P Municipalities Act similar to rule 48(a) of the Rules or Sec. 19(2)(a) of the U.P Municipalities Act and Sec. 15(2)(a) of the U.P District Boards Act. The provisions of Sec. 19 of the U.P Municipalities Act apply to election petitions challenging the election petitions challenging the election of a member of a Town Area Committee, with the result that even in the case of a member of a Town Area the jurisdiction of the election tribunal to go into the question of the correctness of an electoral roll has been excluded by the provisions of Sec. 19(2) of the U.P Municipalities Act. The Town Areas Act, the Municipalities Act and the District Boards Act are all Acts of the U.P Legislature. To me it appears that whenever the legislature wanted to exclude the jurisdiction of an election tribunal from entering into the question of the correctness or otherwise of the electoral roll they have expressly said so in the very section which deal with election petitions. Inasmuch as that has not been done in connection with an election petition regarding the election of the chairman of a Town Area Committee there is no provision which in any manner curtails the scope of rule 48(a) of the Rules. What is remarkable is that whereas practically the same words as are found in rule 48(a) of the Rules find place in Sec. 19 of the U.P Municipalities Act and Sec. 15 of the U.P District Boards Act, provisions similar to those contained in Sec. 19(2) of the U.P Municipalities Act and Sec. 15(2) of the District Boards Act do not find any place in rule 48 of the Rules. The result is that there is nothing which curtails the right of a person filing an election petition to challenge the election of a person on the ground that some persons who could not have been enrolled as voters have been enrolled. If the intention of the rule-making authority was to exclude the jurisdiction of an election tribunal from going into the question of the correctness or otherwise of the electoral roll it could have either made the provisions of Sec. 19 of the U.P Municipalities Act applicable also to election petitions regarding the election of the chairman of a Town Area Committee as was done in the case of the members of the Town Area Committee, or could have added a sub-rule analogous to Sec. 19(2)(a) of the U.P Municipalities Act or Sec. 15(2)(a) of the U.P District Boards Act. It would also be noticed that in Sec. 6-1 of the U.P Town Areas Act the jurisdiction of the civil court has been expressly barred to go into the question as to whether or not a particular person is entitled to be entered in the electoral roll. There is no such restriction on the power of an election tribunal appointed under the provisions of the Rules. Sec. 6-1 of the U.P Town Areas Act runs as follows:

“6-I. (1) No Civil Court shall have jurisdiction—

(a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll of a ward;……”

54. It appears to me that if it was the intention of the legislature that the jurisdiction of an election tribunal should also be barred in respect of this matter they could have made a provision similar to Sec. 6-I(1)(a) of the Town Areas Act. The fact that the legislature has not done so along with the fact that the language of rule 48(a) of the Rules is wide enough to include the examination of the right of a person to be entered in the electoral roll and the further fact that though in other cases there are express provisions curtailing the right of the election tribunal to go into that question there is no such curtailment in the case of an election tribunal contemplated by rule 48 show that the election tribunal is competent in the present case to go into the question of the correctness or otherwise of the electoral roll. The argument that there has been an accidental omission in not adding a sub-rule analogous to Sec. 19(2)(a) of the Municipalities Act or Sec. 15(2)(a) of the District Boards Act does not appeal to me because we have to construe the rule as it stands, and, if there has been an omission, the rule-Making authority can make suitable amendments. In my opinion it is not possible for a court to depart from the plain meaning of the rule.

55. Reliance has been placed upon Sec. 6-F of the U.P Town Areas Act and it is contended that inasmuch as a person whose name is entered in the electoral roll is entitled to vote it cannot be said that his vote is not a lawful vote. Sec. 6-F of the Town Areas Act runs as follows:

“6-F. (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being “entered in the electoral roll of any ward, shall be entitled to vote in that ward.

(2) No person shall vote at an election in any ward if he is subject to any of the disqualifications provided for by or under this Act.

(3) No person shall vote at a general election in more than one ward, and if a person votes in more than one such ward, his votes in all such wards shall be void.

(5) No person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the Police:

Provided that nothing in this sub-section shall apply to a person subject to detention under any law for the time being in force.”

56. The argument is that inasmuch as sub-sec. (1) of Sec. 6-F gives a person absolute right to vote if his name is entered in the electoral roll it cannot be said that his vote is not a lawful vote for the purposes of rule 48 of the Rules. In my opinion Sec. 6-F deals with the manner in which an election is to be conducted at the time of polling. Sec. 6-F(1) only entitles a person to vote at the time of polling and the electoral roll is final so for as the Polling Officer or the Returning Officer is concerned but it is not final, to my mind, so far as the election tribunal is concerned. An examination of the various clauses of Sec. 6-F irresistibly leads to this conclusion. Sec. 13-E of the U.P Municipalities Act runs as follows:

“13-E. Right to vote.— (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any ward shall be entitled to vote in that ward.

“(2) No person shall vote at an election in any ward if he is subject to any of the disqualifications referred to in Section 2-D.

(3) No person shall vote at a general election in more than one ward and if a person votes in more than one such wards his votes in all such wards shall be void.

(4) No person shall at any election vote in the same ward more than once, notwithstanding that his name may have been registered in the electoral roll for that ward more than once, and if he does so vote, all his votes in that ward shall be void.

(5) No person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”

57. It would be noticed that the provisions of Sec. 13-E of the Municipalities Act are exactly similar to the provisions of Sec. 6-F of the Town Areas Act and the same interpretation would have to be placed on the language of Sec. 6-F of the Town Areas Act as on that of Sec. 13-E of the Municipalities Act. It may be mentioned that notwithstanding the fact that Sec. 13-E existed in the Municipalities Act the legislature thought it necessary to enact Sec. 19(2)(a) of the Act. If the intention of the legislature was that by virtue of the provisions of Sec. 13-E the election tribunal was precluded from entering into the question of a person's right to be enrolled as a voter they would not have thought it necessary to enact Sec. 19(2)(a) of the Municipalities Act. It cannot be said that in view of Sec. 13-E the provisions of Sec. 19(2)(a) are a mere waste of words, because it is a well accepted rule of interpretation of statutes that the legislature is deemed not to waste its words or to say anything in vain.

58. It has also been contended that an electoral roll is final under the provisions of rule 12 of the U.P Town Areas (Preparation and Revision of Electoral Rolls) Order, 1953 (hereinafter referred to as the Order) and it is argued that even an election tribunal is precluded from questioning its finality. Rule 12 of Order runs as follows:

“Hearing and decision of claims and objection.—

(1) The Electoral Registration Officer shall hold a summary inquiry into the claim of objection preferred and shall record his decision thereon and order any addition to, omission from or alteration in the electoral roll in accordance with his decision.

For the purpose of the inquiry the electoral roll as published under para 7 shall be presumed to be correct.

(2) The decision of the Electoral Registration Officer shall be final.

(3) A list of claims and objections shall be maintained by the Electoral Registration Officer in Form II of the Schedule.”

59. In my opinion there is nothing in this rule which makes the election register final even as against the election tribunal. Rule 9 of the Order provides for objections being filed to the entries in the electoral roll. Rule 10 provides for the manner in which the objection shall be filed and as to what will be the contents of the objection. Rule 11 provides for notice being issued in connection with objections and rule 12 deals with the hearing and decision of the claims and objections. What is final in rule 12 is the decision of the Electoral Registration Officer with regard to an objection. In other words, if he finds that the name of a particular person should be entered it shall be so entered in the electoral roll. Only to that extent is his decision final.

60. The learned counsel for the petitioner has placed reliance upon the English case of Stowe v. Jolliffe and has submitted that the section which came up for interpretation before the English Court was similar (to Sec. 6-F of the Town Areas Act, and while interpreting it the English Court held that the electoral roll (or the register as it is called there) is conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament. It was also contended that decision has been noticed by the Supreme Court in the case of Durga Shankar v. Raghuraj Singh and their Lordships of the Supreme Court had said that case clearly lays down the law on the subject in England. I have examined that case with great care. The circumstances and the law under which that decision was given are quite different from the circumstances and the law in our case. It was contended that the 7th section of the Ballot Act, 1872 (35 and 36 Vict c. 33) (hereinafter referred to as the English Act) is very similar to Sec. 6-F of the U.P Town Areas Act. Sec. 7 of the English Act runs as follows:

“At any election for a county or borough, a person shall not be entitled to vote unless his name is on the register of voters for the time being in force for such county or borough, and every person whose name is on such register shall be entitled to demand and receive a ballot paper and to vote: Provided that nothing in this section shall entitled any person to vote who is prohibited from voting by any statute, or by the common law of Parliament, or relieve such person from any penalties to-which he may be liable for voting.”

61. It is submitted that Sec. 7 of the English Act and sub-secs. (1) and (2) of Sec. 6-F of the U.P Town Areas Act (which I have already quoted in an earlier part of this judgment) are very similar and, therefore, the decision of the English Court in Stowe's mentioned above must be followed in this Court. But, a full reading of the report of the English case shows that the decision is not based only on an interpretation of Sec. 7 of the English Act but also on an interpretation of Sec. 79 of the Registration Act, 6 and 7 Vict c. 18, which existed from before and was allowed to continue in the Ballot Act after deleting the proviso to that section (79), and also on the history of legislation. Sec. 79 of the Registration Act, after deleting the provisos, runs as follows:

“At every future election for a member or members to serve in Parliament for any county, city, or borough, the register of voters so made as afroesaid shall be deemed and taken to be conclusive evidence that the persons therein named continue to have the qualifications which are annexed to their names respectively in the register in force at such election.”

62. The argument advanced at the English bar was, to quote the learned Judges from the report of the case mentioned above, as follows:

“The effect of the Ballot Act, it was contended, was, by repealing the 98th section of the Registration Act and the 60th section of the Reforms Act, to remove from the Statute Book the provisions which made the register conclusive; and the 79th section, as it applied only when it was first enacted to the procedure at elections and affected only the retuning officer, so such was its only effect now; and the 7th section of the Ballot Act is to be read, in the same manner, as applying only to procedure at elections, and by its proviso practically leaving open the inquiry into any voter's vote, which, although it may be on the register, is capable of being impeached on any legal ground.”

63. Lord Chief Justice Coleridge, while dealing with this argument, observed as follows:

“The argument is ingenious, but, I think, untenable. From the Reform Act to the Ballot Act, the tendency of legislation has been to make, with certain exceptions, the register conclusive. There is nothing in the words ‘at’ or ‘in any election’ (for, both prepositions are used), to limit the enactments to the time of polling only; and, although it is true that the 58th and 60th sections of the Reforms Act and the 98th section of the Registration Act have been repealed, the enacting part of the 79th section of the Registration Act has been carefully kept in force which is the more remarkable, because the provisos to that section which insist on the retention of certain incidents of the qualification up to the time of voting are expressly repealed.

“No answer has been given to the question, and probably no answer could be given to it, what effect is to be ascribed to this 79th section of the Registration Act, beyond and other than the 7th section of the Ballot Act, if both these sections have to do with procedure only. The retention of the earlier section would be only conclusive on the returning officer.

“I think the true construction of these sections, which alone remain, is, to make the register conclusive not only on the returning officer, but also on any tribunal which has to inquire into elections, except in the case of persons ascertained by the proviso. These are, persons prohibited from voting by any statute or by the common law of Parliament’.”

64. It would therefore be noticed that the English case is based upon the interpretation not only of Sec. 7 of the Ballot Act but also Sec. 79 of the Registration Act. Lord Chief Justice Coleridge held that because of the retention of Sec. 79 it could not be held that the 7th section of the Ballot Act makes the register only conclusive on the returning officer. In the U.P Town Area Act there is no section analogous to Sec. 79 of the Registration Act. We have only one section i.e Sec. 6-F of the U.P Town Areas Act. In the absence of a provisions in the U.P Town Areas Act similar to Sec. 97 of the Registration Act, I do not see how it can be said that the English case is a direct authority on the facts of our case. Lord Chief Justice Coleridge also held that the register of votors was final on the ground that, from the Reforms Act to the Ballot Act, the tendency of legislation has been to make the register conclusive. There is no such legislative history in our case and, in my opinion, the English case is quite distinguishable and can have no application to the facts of the case before us.

65. Learned counsel for the petitioner has placed reliance upon the case of Mahadeo v. Bisan. In that case an application for a writ of mandamus and other reliefs was made by person who had been defeated in an election held to the Corporation of the City of Nagpur. It appears that in that case no election petition was filed and a writ was moved in the Nagpur High Court praying for a declaration that the election in question was not in accordance with law, having been held on erroneous electoral rolls, and for prohibiting the State Government from notifying the names of the respondents in the case as councillors under Sec. 16 of the City of Nagpur Corporation Act, and further for restraining the respondents from taking part in the selection of six councillors. The learned Judges held that the provisions of the City of Nagpur Corporation Act made the electoral roll conclusive on the point of the right of a voter to vote in any particular ward or constituency. First of all, that case was decided on the provisions of the City of Nagpur Corporation Act and it has not been shown to us that the provisions of that Act are similar to the provisions of the U.P Town Areas Act. Secondly, there the question was not as to whether an election tribunal had the power to go into the question as to whether a particular person was rightly or wrongly enrolled as a voter. We are here concerned with the interpretation of rule 48 of the Rules and that case is no guide in deciding the question before us.

66. The next case on which the learned counsel for the petitioner placed reliance is that of Vithaldas v. Sadanand. In this case the learned Judges followed the earlier case i.e, the one mentioned above. This case also cannot help us in interpreting the language of rule 48 of the Rules as also the other provisions of the U.P Town Areas Act.

67. The learned counsel for the petitioner has also placed reliance upon paragraph 544, page 302, Vol. 14 of Halsbury's Laws of England (Simon's Edition). It is not necessary to reproduce that paragraph here because that paragraph deals with the law in England and can be no guide in interpreting rule 48 of the Rules. It may also be noticed that paragraph is based upon the decision of the case reported in (1874) L.R 9 C.P 734 which I have already discussed above. In my opinion the present case has got to be decided on the provisions of the U.P Town Areas Act and especially on the language of rule 48 of the Rules.

68. It has also been contended that clause (13) of Sec. 2 of the U.P Town Areas Act defines an ‘elector’ as follows:

“elector, in relation to a ward, means a person whose name is for the time being entered in the electoral roll of that ward.”

69. Rule 5 of the Uttar Pradesh Town Areas (Conduct of Election of Chairman) Rules, 1953 reads as follows:

70. It is contended that for the purpose of election of the Chairman the persons whose names are for the time being entered in the electoral roll will be deemed to be the electors. It is contended that reading these provisions with Sec. 6-F of the U.P Town Areas Act it is clear that if a person's name is entered in the electoral roll he has got a right to vote. It is not disputed that he has got such a right. The question is that even though the inclusion of the name of a person in the electoral roll may be conclusive against the polling officer and the person so named has got a right to vote, does it justify the conclusion that the tribunal cannot go into the question whether or not the name of that person was correctly entered in the electoral roll? In my opinion there is nothing the U.P Town Areas Act or rule 48 of the Rules which takes away from the tribunal the power to decide that question.

71. It has been argued on behalf of the petitioner that there is a difference between “unqualification” (or want of qualification) and “disqualification”, and it is contended that even though a person may not be qualified to be enrolled as an elector, if his name is entered in the electoral roll he has got a right to vote and that right cannot be questioned even before an election tribunal, but if that person incurse a disqualification he has got no right to vote and if he has no right to vote the election tribunal can go into that question. It is true that there is a difference between “unqualification” and “disqualification”. The provisions of Secs. 12-B to 12-H of the U.P Municipalities Act have been made applicable to Town Areas. Sec. 12-C of the U.P Municipalities Act runs as follows:

“12-C. Subject to the provisions of section 12-D, every person who is qualified to be registered in the Assembly electoral roll relatable to the area comprised in the ward or whose name is entered therein shall be entitled to be registered in the electoral roll of the ward”.

72. Sec. 12-D of the same Act is:

12-D. (1) A person shall be disqualified for registration in an electoral roll if he is disqualified for registration in the Assembly rolls.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll of the ward in which it is included:

73. Inasmuch as there is a reference under Sec. 12-C of the U.P Municipalities Act to the Assembly electoral roll it is necessary to examine the provisions of Sec. 19 of the Representation of the People Act, 1950 (XLIII of 1950) which deals with the conditions of registration or, in other words, the qualifications for being registered as a voter. Sec. 19 says:

“Condition of registration. Subject to the foregoing provisions of this Part, every person who—

(a) has been ordinarily resident in a constituency for not less than 180 days during the qualifying period, and

(b) was not less than 21 years of age on the qualifying date, shall be entitled to be registered in the electoral roll for that constituency.”

74. Sec. 16 of the Representation of the People Act deals with this disqualifications. It runs as follows:

“Disqualifications for registration in an electoral roll—A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt and illegal practices and other offences in connection with elections.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included.

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-sec. (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.” In the Representation of the People Act, conditions of registration or qualifications to be enrolled as an elector have been separately treated from disqualification. To my mind want of qualification or un-qualification is distinctly different from disqualification. As the provisions of Secs. 16 and 19 of the Representation of the People Act apply to Town Areas also it must be held that there is a difference between disqualification and want of qualification in the law relating to the elections in a Town Area also.

75. The learned counsel for the respondents relied upon the case of Prabhakar Yajnik v. The District Magistrate, Bulandshahr and the following passage has been cited before us:

76. On the basis of this case it is contended that there being no difference between disqualification and want of qualification, if it is open to an election tribunal to investigate as to whether or not a person who has voted was disqualified from voting it was equally open to the tribunal to decide whether or not he was qualified at all to be enrolled as an elector. With the greatest respect I am unable to agree with the decision mentioned above because I have already held that want of qualification or “unqualification” is quite distinct from “disqualification”. The result of unqualification or want of qualification is that a person cannot at all be enrolled as a voter, but the result of a disqualification is that though he is entitled to be recorded as a voter his name is liable to be struck off on any of the grounds on which he can be disqualified under the law. It is not possible to support the judgment of the election tribunal on the basis of this decision. But as I have said above I am of the opinion that the language of rule 48 of the Rules is wide enough to entitle an election tribunal to decide whether or not a particular person was correctly enrolled as a voter. For these reasons I hold that the decision of the election tribunal is correct and does not require any interference. I would, therefore, dismiss the petition with costs.

77. By The Court:— We allow this petition and direct that a writ of certiorari shall issue quashing the order of the Election Tribunal, opposite party No. 1, dated the 29th April, 1958. The Tribunal shall now proceed to decide the election petition according to law.

78. Petition allowed.

Representation of the People Act,rule 48 of the Rules.

Mohiuddin v. Election Tribunal For Town Area

Comprehensive Summary of the Opinion (Full Bench — Election Tribunal / Electoral Rolls)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (in support of quashing the Election Tribunal's order)

Respondent's Arguments (in support of Election Tribunal's order)

Table of Precedents Cited

Court's Reasoning and Analysis

Majority Reasoning (Dayal, J. and M.L. Chaturvedi, J.) — Core points

Dissenting Reasoning (Jagdish Sahai, J.) — Core points

How the Court resolved conflicting views

Holding and Implications

Implications

Mohiuddin v. Election Tribunal For Town Area

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