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Viswanadhuni Venkatakondayya v. Election Commissioner, Kanigiri, Nellore Dt. And Two Others
Structured Summary of the Opinion
Factual and Procedural Background
This is an application under Article 226 of the Constitution seeking to call for the records in O.P. No. 14 of 1953 on the file of the Election Commissioner, Kanigiri, and to quash the Election Commissioner's order dated 22-3-1954.
At an election held on 17-3-1953 for membership of the Panchayat Board of Kanigiri, V ward, the petitioner, the 2nd respondent and two others contested. The petitioner was declared elected, having secured the majority of the votes polled.
The 2nd respondent filed an election petition (O.P. No. 14 of 1953) seeking a declaration that the petitioner's election was null and void. The petition alleged various irregularities, corrupt practices and illegalities; the principal allegation was that the petitioner had not attained the requisite age to be an elector entitled to vote or to stand for election.
The Election Commissioner recorded evidence, concluded there was no satisfactory evidence that the petitioner was born on 31 March 1931, and found documentary evidence showing the petitioner's date of birth as 31 March 1933. The Election Commissioner considered statutory provisions (including provisions of the Representation of the People Act, the Local Boards Act and the Village Panchayats Act) with respect to the finality of entries in the electoral rolls and held that, in the absence of any prohibition, the 2nd respondent was entitled to attack the electoral roll. The Election Commissioner set aside the petitioner's election as null and void and directed a fresh election for the ward.
Legal Issues Presented
- Whether the Election Commissioner's order (dated 22-3-1954) setting aside the petitioner's election on the ground that the petitioner was below the qualifying age should be quashed under Article 226.
- Whether an entry in the electoral roll is final and conclusive so as to preclude the Election Commissioner from inquiring into the qualification (age) of a person whose name appears on the electoral roll for purposes of a panchayat election.
- Whether the principles applied by the Supreme Court in Durga Shankar Mehta v. Thakur Raghuraj Singh (relating to the conclusiveness of electoral rolls and the reach of Section 100(2)(c) of the Representation of the People Act) are applicable to elections under the Madras Village Panchayats Act where allegedly no provision analogous to Section 100(2)(c) exists.
Arguments of the Parties
Petitioner's Argument (as advanced by Mr. Vedantachari)
- An entry made in the electoral roll is final and conclusive.
- The only remedy for a person aggrieved by an entry in the electoral roll is to apply for revision of the electoral roll; subject to any such revision, the electoral roll is final and conclusive.
- The decision of the Supreme Court in Durga Shankar Mehta (which proceeded on Section 100(2)(c) of the Representation of the People Act) does not apply because there is no provision analogous to Section 100(2)(c) in the Village Panchayats Act or the rules made thereunder.
2nd Respondent's/Respondent's Position (as reflected in the petition)
- The election of the petitioner is null and void because the petitioner had not attained the competent age to be an elector entitled to vote or to stand for election (i.e., was under 21 years of age).
- Various irregularities, corrupt practices and illegalities were alleged in the election petition, with the principal allegation being non-attainment of the requisite age.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Durga Shankar Mehta v. Thakur Raghuraj Singh, 1954 2 M.L.J. 385 (Supreme Court of India) | The Supreme Court held that the electoral roll is conclusive as to the qualification of the elector except where disqualification is expressly alleged or proved; the Court construed Section 100(2)(c) of the Representation of the People Act and treated the case as falling under sub‑section 2(c) rather than under sub‑section 1(c). | The court noted the parties relied upon this decision. It observed the Supreme Court's reasoning proceeded on construction of Section 100(2)(c). The present court applied the underlying principle that the electoral roll is final and conclusive except where disqualification is alleged or proved, and accepted that the Election Commissioner could inquire into and find the petitioner below the qualifying age on evidence, thereby setting the election aside. |
Court's Reasoning and Analysis
The court proceeded in the following analytical steps, relying on the facts, statutory provisions and the Election Commissioner's findings as recorded in the Election Commissioner's order:
- Jurisdictional posture: The present proceeding is an Article 226 writ petition seeking to quash the Election Commissioner's order of 22-3-1954 which had set aside the petitioner's election and directed a fresh election.
- Essential statutory requirements: The court examined Article 326 of the Constitution (which establishes adult suffrage and specifies that a person must not be less than 21 years of age on the qualifying date to be entitled to be registered as a voter) and Sections 19–21 of the Representation of the People Act (which provide conditions of registration). From Article 326 and Section 19, the court concluded that a person must not be less than 21 years of age on the qualifying date to be registered.
- Relevant provisions of the Madras Village Panchayats Act: The court cited Section 12(2) (which ties the panchayat electoral roll to the relevant part of the Assembly electoral roll) and Section 13 (which provides that no person shall be qualified for election as a member of a panchayat unless his name appears on its electoral roll). The court noted the Assembly electoral rolls are prepared on the basis of Sections 19–21 of the Representation of the People Act, bringing the age requirement into play for panchayat qualifications by necessary intendment.
- Conclusive nature of electoral rolls and its limitation: The court acknowledged the general rule (as articulated in the cited Supreme Court precedent) that the electoral roll is final and conclusive as to an elector's qualification except where disqualification is expressly alleged or proved. It reiterated that the rule is not absolute and is subject to challenge where disqualification is shown.
- Application to the evidence: The Election Commissioner considered the documentary and oral evidence and found no satisfactory and positive evidence that the petitioner was born on 31 March 1931; instead documentary evidence showed birth on 31 March 1933. On review of the evidence, the Election Commissioner found the petitioner was below 21 years of age at all material times. The court observed that the propriety of this finding of fact, being based on appreciation of evidence, was not open to challenge in the present Article 226 petition.
- Returning Officer point addressed: The court rejected the argument that the absence of an objection to the petitioner's nomination before the Returning Officer precludes later inquiry. It explained that the Returning Officer is bound to take the entry in the electoral roll as conclusive for scrutiny purposes, but that this is not finally determinative; the Election Commissioner could, on evidence, conclude the candidate was not qualified.
- Conclusion from reasoning: Because the Election Commissioner validly found the petitioner to be under the qualifying age and because the electoral roll's conclusiveness is subject to proof of disqualification, the Election Commissioner's order setting aside the election was upheld by the court and no interference under Article 226 was warranted.
Holding and Implications
Holding: The writ petition under Article 226 is dismissed. The Election Commissioner's order setting aside the petitioner's election as null and void and directing a fresh election was not interfered with.
Implications:
- Direct effect on the parties: The petitioner's election was set aside on the ground that the petitioner was below the qualifying age (found to be born on 31 March 1933) and a fresh election for the ward was directed.
- Finality and precedent: The court applied the established principle that electoral rolls are final and conclusive except where disqualification is expressly alleged or proved; it treated the Election Commissioner's factual finding (that the petitioner was under 21) as decisive and not open to challenge in the present writ. The opinion did not articulate any new legal principle beyond applying existing statutory provisions and the cited Supreme Court authority.
Writ Petition dismissed. (T.A.B.)
1. This is an application under Article 226 of the Constitution to call for the records in O.P No. 14 of 1953 on the file of the Election Commissioner, Kanigiri, and to issue a writ of certiorari quashing the order therein dated 22-3-1954.
2. At an election held on 17-3-53 for the membership of the Panchayat Board of Kanigiri, V ward, the petitioner, the 2nd respondent and two others were the contestants. The petitioner was declared elected as having secured the majority of the votes polled at the election.
3. The 2nd respondent filed an election petition, O.P No. 14 of 1953 for a declaration that the election of the petitioner is null and void. The election petition set out various irregularities, corrupt practices and illegalities, but the important allegation made in the petition was that the petitioner did not attain the competent age to be an elector entitled to vote or stand for election, and that therefore the petitioner's election must be set aside.
4. The Election Commissioner, Kanigiri, recorded evidence and on a consideration of the evidence adduced before him reached the conclusion that there is no satisfactory and positive evidence to show that he was born on the 31st of March, 1931, but that on the other hand there is documentary evidence to show that the petitioner was born on 31st March, 1933 and that the date of birth of the petitioner is 31st March, 1933. The Election Commissioner carefully considered the legal contentions raised before him with regard to the finality of the entries made in the electoral rolls with reference to the material provisions of the Representation of the People Act, the Local Boards Act, the Village Panchayats Act and other statutory enactments, and came to the conclusion that in the absence of a prohibition which precludes him from questioning the validity or conclusiveness of the electoral rolls under the Village Panchayats Act and the rules made thereunder, the 2nd respondent was entitled to attack the same before the Election Commissioner. He therefore held that the 2nd respondent was entitled to raise the question that the petitioner had not the requisite age to be a voter. In the result, he set aside the election of the petitioner as null and void, and directed a fresh election for the said ward.
5. Mr. Vedantachari, the learned counsel for the petitioner contended that an entry made in the electoral roll is final and conclusive and the only remedy of a person aggrieved is to apply for revision of the electoral roll, and subject to any revision to be made by the electoral authority, the electoral roll is final and conclusive.
6. Here it is necessary to refer to the relevant provisions of the Constitution, the Reperesentation of the People Act and the Village Panchayats Act.
7. Article 326 of the Constitution runs thus:—
“The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis, of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 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.”
8. This Article provides that election to the House of the People and to the Legislative Assembly of a State shall be on the basis of unqualified adult suffrage; that is to say, every citizen of India, male or female, who is not less than 21 years of age and is not otherwise disqualified under this Constitution or by any law of the appropriate legislature on the grounds specified in this Article shall be entitled to be registered as a voter. For the conditions of actual registration, we must go to the Representation of the People Act (XLIII of 1950) and Sections 19 to 21 thereof provide for the conditions of registration of a person as a voter.
9. Section 19 of the Representation of the People Act (XLIII of 1950) so far as is material runs thus:—
“Subject to the foregoing provisions of this Part, every person who…………………………
(a) …………………………………
(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.”
10. On a reading of the provisions of Article 326 of the Constitution, and Section 19 of the Representation of the People Act, it is manifest that a person before he can be registered as a voter must NOT be less than 21 years of age on the qualifying date.
11. Reference may also be made to the relevant provisions of the Madras Village Panchayats Act, 1950. Sec. 12(2) of the Madras Village Panchayats Act (X of 1950) provides:
“Every person whose name is included or who is qualified to be included in that part of the electoral roll for any territorial constituency of the Madras Legislative Assembly which relates to the village or any portion thereof shall be entitled to be included in the electoral roll for the panchayat, and no other person shall be entitled to be included therein.
Explanation I:— Where in the electoral roll of any territorial constituency of the Madras Legislative Assembly, there is no distinct part relating to the village, the following persons shall be entitled to be included in the electoral Toll for the panchayat:
(a) All persons who are entered in such roll under the registration area comprising such village and whose addresses as entered in such roll are situated in such village.
(b) All persons who are qualified to be included in such roll under the registration area aforesaid and who reside in such village.”
12. Section 13 of the said Act provides for qualification of candidates.
“No person shall be qualified for election as a member of a panchayat unless his name appears on its electoral roll.”
13. Sections 14, 15 and 16 enumerate the disqualifications.
14. Both parties have relied upon a decision of the Supreme Court of India in Durga Shankar Mehta v. Thakur Raghuraj Singh 1954 2 M.L.J 385.. In that case the Supreme Court was dealing with the validity of an election for the Legislative Assembly constituency, and the question for consideration was whether that election was void under Section 100(1)(c) of the Representation of the People Act. Their Lordships of the Supreme Court held that the electoral roll was conclusive as to the qualification of the elector except where disqualification was expressly alleged or proved. Their Lordships considered the provisions of Section 100(2)(c) which provided that:
“Subject to the provisions of sub-section (3), if the Tribunal is of opinion:
(c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the Tribunal shall declare the election of the returned candidate to be void.”
15. And held that a case of this description comes under sub-section 2(c) of Section 100 and not under sub-section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution and that is one of the grounds specified in clause (c) of sub-section (2). The learned counsel for the petitioners contends that there is no provision analogous to section 100(2)(c) in the Village Panchayats Act or the Rules made thereunder and that therefore the reasoning of the decision of the Supreme Court does not apply. It is true that the judgment of the Supreme Court proceeded on the construction of the provisions of Section 100(2)(c).
16. Section 13 of the Madras Village Panchayats Act, which is extracted above, provides that no person shall be qualified for election as a member of a Panchayat unless his name appears on its electoral roll and section 12(2) provides that every person whose name in included or who is qualified to be included in that part of the electoral roll for any territorial constituency of the Madras Legislative Assembly which relates to the village or any portion thereof shall be entitled to be included in the electoral roll for the panchayat, and the electoral rolls for the Legislative Assembly are prepared on the basis of the provisions contained in sections 19 to 21 of the Representation of the People Act. Under section 19 of that Act a person must not be less than 21 years of age before he can be registered. The qualification as to age must be held by necessary intendment to be an essential requisite even in the case of a person who is qualified to vote or stand for election as a member of the panchayat. It is no doubt true that the electoral roll must be regarded as final and conclusive except in cases where persons are prohibited from standing for election by any statute. In other words, the rule is conclusive as to the qualification of the elector except where disqualification is exppressly alleged or proved. On a review of the evidence, the Election Commissioner came to the finding that the petitioner was below 21 years of age at all material times. The propriety of this finding of fact, which is based on an appreciation of the evidence is not open to challenge before this Court.
17. The fact that no objection was taken to the nomination of the petitioner before the Returning Officer at the time of the scrutiny will not make any difference. The Returning Officer is bound to take the entry in the electoral roll as conclusive but it is not certainly final. It is open to the Election Commissioner on the evidence placed before him to come to the conclusion that the candidate was not qualified at all, he having been below 21 years of age at the time of the nomination and at the time of the election and also at the time when his name was included in the electoral roll. Therefore, I am of the opinion that the election of the petitioner must be set aside.
18. In the view I have taken, no interference under Article 226 is called for and this Writ Petition is, therefore, dismissed with costs.
T.A.B
19. Writ Petition dismissed.
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