Andhra HC (Pre-Telangana)
Duvvuru Madhusudhan Reddy vs The Election Court And Anr. on 16 January, 1991
Equivalent citations: 1991(1)ALT349
ORDER Parvatha Rao, J.
1. This Writ Petition relates to the election of Sarpanch of Udathavaripalem Gram Panchayat held on 10-3-1988 and is filed for quashing the order of the Election Court (District Munsif), Gudur (the 1st respondent herein) in I.A. No. 80 of 1990 in O.P.No. 20 of 1988 dated 9-8-1990 allowing the said I.A. preferred by the 2nd respondent herein praying for the opening of "the packets of ballot papers polled by both the parties herein and the packets containing invalid votes in respect of them and recounting" etc.
2. The petitioner in this Writ Petition was declared as elected as Sarpanch at the said election. He secured 654 votes and the 2nd respondent herein, another contestant in the said election, secured 649 votes. The number of invalid votes is 45.
3. The 2nd respondent herein filed the said O.P.No. 20 of 1988 before the 1st respondent praying inter alia for declaring the election of the petitioner herein as void and for further declaring that he was duty elected as Sarpanch. The grounds raised by the 2nd respondent in the said O.P. for the declarations sought by him, to the extent relevant for the present Writ Petition, are as follows :-
(i) (Ground (a) in the Election Petition) :
The Election Officer wrongly held about 12 votes cast in favour of the 2nd respondent herein as invalid on flimsy and untenable grounds;
(ii) (Ground (e) in the Election Petition) :
At the time of polling, 2 minors bearing Sl. Nos. 1505 and 1519 were allowed to exercise their franchise despite objection as they were aged only less than 18 years; and
(iii) (Ground (g) in the Election Petition) :
The Election Officer allowed 6 persons to vote twice despite protest by the 2nd respondent's agent and they are Sl. Nos. 67 and 1560, 68 and 1559, 99 and 1330, 100 and 1329, 380 and 396 and 754 and 1560.
In the counter filed by the petitioner herein in the said O.P. it is stated in respect of ground No. (i) that it is absolutely false that the election officer wrongly held about 12 votes cast in favour of the 2nd respondent herein as invalid on flimsy and untenable grounds; and in respect of ground No. (ii) it is stated that it is absolutely false that voters bearing Sl. Nos. 1505 and 1519 were minors and it is further stated that no such objection was raised at the time of preparation and publication of the voters list which had become final or at the time of the election ; and as regards ground No. (iii) it is stated that though the names of the voters were found in two places in the voters list, they exercised franchise only at one place and that therefore it was incorrect to say that 6 persons were allowed to vote twice and that the name of the voter in Sl. No. 754 is repeated in Sl. No. 1526 and not in Sl. No. 1560 as stated in the election petition.
4. After the examination of witnesses on both sides and the marking of the documents was completed and the Election Petition was ready for argument, the 2nd respondent herein filed the said I.A. No. 80 of 1990 on 13-6-1990. In the affidavit of the 2nd respondent herein in support of the said I.A. it is stated as follows :-
"I state that the entire evidence in the case is over and the ballot papers polled by both parties were also marked in the above matter In the light of the evidence on record and as I was declared to have lost the election by a margin of 5 votes, I state that it is just and necessary that the ballot papers polled by us, both valid and invalid, have to be recounted to arrive at a just decision in the case as to who should be the successful candidate."
That is the sole basis put forward by the 2nd respondent for the recount prayed for by him. The petitioner herein in his counter contends that the 2nd respondent cannot seek recount of the votes as the allegations in his election petition and evidence are vague and that he cannot be permitted to fish out information by seeking recount of ballot papers as it amounts to violation of secrecy of ballot papers.
5. The reasons that persuaded the 1st respondent to allow the said IA of the 2nd respondent for recount, in his own words, are as follows :-
"The main allegation of the petitioner is that 12 votes for which he is entitled to declare as invalid. The petitioner further stated that 10 votes for which the respondent is not entitled, declared as valid votes. Adinarayana Reddy gave his petition for re-counting. But the Election Officer gave an endorsement on the petition that he would not allow re-counting. The further more main allegation of the petitioner is the Election Officer has not permitted him to enter into the booths during counting and that he did not allow the Relieving agents. The petitioner contended in his petition that the respondent got polled 2 minor,votes. The minor's names are (1) N. Sudhakar and (2) Nindati Srinivasulu. P.W. 3 is the Head Master and he stated that according to the Admission Register, the above said two voters are minors. If at all the above said two minors exercised their franchise in this election, their votes are deemed to be invalid. Even the counsel for the respondent Mr. M. Dasaradharam argued that even if the minors might have exercised their votes, those 2 votes can be picked out and declared as invalid votes. So, according to the above material one of the irregularities that was taken place during the elections. P.W. 2 who is Counting Agent on behalf of the petitioner deposed in the main petition that the Election Officer declared 12 votes of the petitioner as invalid on the ground that the marks on the votes found at 2 places, on account of the folding of the ballot papers. There is no material on record from the respondent's side that if two same marks are found in one ballot paper on account of the wrong folding of the billot paper, it can be deemed invalid. I am of the view that it is also an irregularity that has taken place during the counting of the votes because the counsel for the respondent did not show any provision of law or any rule with regard to the election that if 2 same marks are found on one ballot paper it can be declared as invalid vote. ....... ...... ......The petitioner further contended in his petition in O.P.No. 20 of 1988 that the Election Officer allowed 6 persons to vote despite pro-test by the petitioner's agent and their Serial Numbers are 67 and 1560, 68 and 1559, 99 and 1330, 100 and 1329, 380 and 396 and 754 and 1560. In this aspect even assuming for a moment that the version of the petitioner is correct that the Election Officer allowed 6 persons to vote twice despite protest by the petitioner's agents, it is not possible to arrive at the conclusion even during recount that particular person voted twice. The other allegations of the petitioner in the main O.P. are not tenable because there is no material on record on petitioner's side that some of the persons voted in Udathavaripalem polling booth, who are not the voters of Udathavaripalem Panchayat. In view of the above discussion, I am of the view that the petitioner placed sufficient material for re-counting the ballot papers only pertaining to 2 minor votes and 12 votes only which contained 2 marks on each vote."
Even though the 1st respondent was of the view that the petitioner placed sufficient material for recounting the ballot papers pertaining to the two minor votes and 12 votes only, he allowed the said I.A. without making it clear that recounting should be restricted only to the said 14 votes, perhaps because they were not identified.
6. It is the case of the petitioner that the 2nd respondent did not furnish any material particulars or the source of information for making the allegations in respect of the 12 votes that they were wrongly held as invalid, and that the allegations in repect of the said 12 votes were vague, and that the said allegations cannot form a ground for ordering recount. The petitioner also submits that there is no evidence on record to prove that 12 valid votes were invalidated by the election officer. The only evidence adduced by the 2nd respondent as regards the said ground No. (i) is the evidence of P.W. 2 who was his counting agent. The petitioner herein submits that P.W. 2 did not note any particulars about the alleged invalidation of the 12 votes at the time of counting and that no particulars i.e., the serial numbers of the ballet papers and the names of the voters were mentioned, nor were the booths at which they voted mentioned, and that no contemporaneous record was produced to substantiate the allegations or support of the same. As regards the persons bearing Sl. Nos. 1505 and 1519 also the petitioner states that no evidence was produced to establish that they were minors except the oral evidence of the Head Master who was examined as P.W. 3 and who deposed in respect of the said two persons relying on the school admission register which was not marked as an exhibit in the O.P. The petitioner herein also states that P.W. 8 did not state that he had any knowledge about the said persons or as regards the persons who made entries in the school admission register and as regards persons who furnished the information based on which the said entries were made. The petitioner further contends that undisputedly the said 2 persons were included in the voters list and that therefore the Election Tribunal cannot question the voters list and enquire into the correctness of the entries therein. The petitioner therefore submits that the impugned order of the 1st respondent is vitiated by errors apparent on the face of the record and is contrary to law and therefore is liable to be set aside.
7. On 14-8-1990 when this Writ Petition was admitted, this Court granted interim suspension of the impugned order for recount pending further orders in W.P.M.P. No. 14868 of 1990. The 2nd respondent herein filed W.V.M.P. No. 1425 of 1990 for vacating the said order of interim suspension and on 7-9-1990 the said W.V.M.P. was allowed and the order granting interim suspension was vacated. The petitioner herein filed Writ Appeal No. 1095 of 1990 questioning the said order of the learned Single Judge dated 7-9-1990 and a Division Bench of this Court allowed the Writ Appeal on 11-9-1990 and set aside the said order dated 7-9-1990 and directed that there shall be an interim suspension of the impugned order of the 1st respondent till the disposal of this Writ Petition observing as follows:-
"In the present case the first condition regarding the particulars being given in the pleading is lacking though there is oral evidence of P.W. 2, counting agent in support thereof. So far as ground No. (e) is concerned as we mentioned earlier, we cannot order recount on this ground. On ground No. (a) prima facie, it is not a fit case to order recount. Hence we set aside the impugned order of the learned single Judge dated 7-9-1990 and direct that there shall be an interim suspension of the impugned order of the tribunal dated 14-8-1990 till the disposal of the writ petition. It is open to the respondent to urge that ground (g) ought to be taken into consideration at the hearing of the writ petition".
8. The learned counsel for the petitioner contends that in the election petition no mention whatever was made as regards the reason for invalidating the said 12 votes and that it was only stated that they were held as invalid "on flimsy and untenable grounds". Even in the petition for recounting filed by P.W. 2 as the counting agent of the 2nd respondent, marked as Ex. A-14 in the election petition, it was only alleged that the election officer took a unilateral decision in respect of 45 votes that they were invalid. The learned counsel for the petitioner submits that the reason trotted out for the first time by P.W. 2 in his examination-in-chief that the said 12 votes were invalidated on the ground that "the marks on the votes found at two places. It has happened on account of folding of the ballot papers. Some of these votes do not contain the 'Swastic' mark properly" is an after thought and cannot be given any credence when it was not mentioned in Ex. A-14 or in the election petition.
9. I agree. In Ex. A-14, 45 votes were mentioned and the complaint was that they were rejected by a unilateral decision of the election officer. In the election petition the complaint related to 12 votes; that they were rejected on flimsy and untenable grounds. The reason that P.W. 2 gives in his evidence is not mentioned in Ex. A-14 or even in the election petition and therefore it is clearly an after thought and insubstantial. In the cross-examination, P.W. 2 states that he could not give the serial numbers of the 12 votes and that he only raised oral objections by the end of counting of each ward.
10. In support of his contention that recounting cannot be ordered on the basis of vague allegations and in the absence of clear evidence, the learned counsel for the petitioner relied on the recent decision of the Supreme Court in P.K.K. Shamsudeen v. K.A.M.M. Mohindeen, arising under Tamil Nadu Panchayats Act. In that case the Supreme Court observed as follows:-
"Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes".
He also relied on a judgment of this Court in T. Penchalaiah v. Election Court, 1990 (1) ALT Page 669 at 678 wherein, after an elaborate discussion of a catena of cases Jagannadha Rao, J., formulated the principles as follows:-
"From the aforesaid rulings, the following principles can be summarised:-Material particulars have to be stated in the petition. What are material particulars differ from case to case but general allegations of irregularities in counting can never furnish a ground for ordering a recount. A half-hearted or partial statement of material particulars may not also be a reason for the Court to order a recount even though it may, in certain circumstances, be sufficient for the Returning Officer to order recount. The petition must specify the 'material' or basis on which his information is based or the record on the basis of which his counting agents have furnished him the information. The existence of any contemporaneous record of the filing of any application before the Returning Officer during the counting would lend support to the particulars stated in the petition. Mere furnishing of minute details so as to satisfy certain requirements of law as decided by the Courts cannot help unless material in support thereof is also set out in the petition. The court must consider whether the petitioner could not have given other facts, such as the polling booth numbers or the round of counting".
In view of the above two decisions, it is clear that the election court erred in ordering recount on the vague ground that 12 votes were invalidated by the election officer when no reason whatsoever was mentioned in the petition and when no specific objection was raised at the time of counting in respect of any particular ballot papers.
11. As regards the finding of the election court in respect of ground (e) relating to two votes of persons in serial Nos. 1505 and 1519 in the voters list, the learned counsel for the petitioner submits that it is not open to the election court to entertain the question regarding their minority and their eligibility to vote. He relies on Sub-section (6) of Section 14-C of the Andhra Pradesh Gram Panchayats Act, 1964 (hereinafter referred to as 'the Act'), which is as follows :-
"(6): Every person whose name appears in the part of the electoral roll relating to a ward shall, subject to the other provisions of this Act, be entitled to vote at any election which takes place in that ward while the electoral roll remains in force and no person whose name does not appear in such part of the electoral roll shall vote at any such election."
Section 14 of the Act requires that there shall be an electoral roll for every gram panchayat and provides for its preparation. Sub-section (1) of Section 14-B of the Act provides that subject to the other provisions of the Act, every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in the village shall be entitled to be registered in the electoral roll of the gram panchayat of that village. Preparation of the electoral rolls from the gram panchayats are governed by the Andhra Pradesh Gram Panchayats (Registration of Electors) Rules, 1978 framed under the Act. It provides for the publication of the electoral roll in draft, lodging claims and objections in respect of the same, disposal of the said claims and objections and for the final publication of the electoral roll for the gram panchayat, and for appeals from orders deciding claims and objections and for amendments to be made in the electoral roll as may be necessary to give effect to the decisions of the Appellate Authority. Rule 27 of the said Registration of Electors Rules, 1978 provides for correction of entries and inclusion of names in electoral roll and under the said Rule any person whose name is not included in the electoral roll of a gram panchayat or any person who considers any entry in the electoral roll is erroneous or defective in any particular may apply to the Electoral Registration Officer for the inclusion of his name in that roll or for making necessary correction. Rule 28 of the said Registration of Electors Rules provides for appeals against the orders passed by the Registration Officer on applications under Rule 27(1). Sub-rule (7) of the said Rule 27 provides as follows :-
"27(7) :-No amendment, transposition or correction of any entry shall be made and no direction for inclusion of a name in the electoral roll of a gram panchayat shall be given, after the last date for making nominations for an election in that gram panchayat or the last date for making nominations for an election to the office of President, Mandala Praja Parishad or Chairman, Zilla Praja Parishad and before the completion of such elections."
Relying on these provisions, the learned counsel for the petitioner contends that once a person's name appears in the electoral roll relating to a ward of a gram panchayat, he is entitled to vote at any election which takes place in that ward while the electoral roll remains in force and therefore persons in serial Nos. 1505 and 1519 of the electoral roll are entitled to vote and the exercise of franchise by them cannot be questioned on the ground that they are minors. The learned counsel for the petitioner relies on the decision of the Supreme Court in R. Chandran v. M.V. Marappan, . That case arose under the Madras Village Panchayats Act, 1958 and the Supreme Court was considering the question "whether once a person's name is found in the electoral role of the village panchayat it is open to the Election Tribunal or any other authority to question the fact that he was above the age of 21". Sub-section (5) of Section 20 of the said Act provides as follows :-
"Every person whose name appears in the electoral roll for the panchayat shall, so long as it remains in force and subject to any revision thereof which might have taken place and subject also to the other provisions of this Act, be entitled to vote at an election; and no person whose name does not appear in such roll shall vote at an election".
The Supreme Court observed that the said Section itself did not lay down the qualification for a voter, it only adopted the qualification laid down for persons to be included in the electoral roll of the Legislative Assembly constituency of which that village may be a portion and that "it follows, therefore, that all decisions of this Court holding that when once a person's name has been included in the electoral roll, his right to vote cannot be questioned would be applicable in interpreting Section 20 of the Madras Panchayats Act". After referring to its decisions in Durga Shankar Mehta v. Raghuraj, and Ramaswamy v. Krishnamurthy, , the Supreme Court observed as follows : -
"After the decision of this Court in Ramaswamy''s case, there was no room for any further difference of opinion on the matter. It is, therefore, all the more surprising, that the Andhra Pradesh High Court in C. Goverdhanreddy v. Election Tribunal, Bapatla, (F.B.) and the Madras High Court in Viswanathan v. Rangaswamy, took a different view even after taking note of the decision of this Court. Both these decisions, as we have pointed out earlier, proceed on a wholly wrong assumption. Their attempt to distinguish the decision of this Court in Ramaswamy's case is pointless. The Provisions of Article 326 of the Constitution are not attracted in deciding upon the validity of the inclusion of a person's name in the electoral roll for a Panchayat merely because the Panchayats Act has adopted a part of the electoral roll for an Assembly constituency as the electoral roll for the Panchayat. And in any case all the decisions of this Court on the finality of the electoral roll and their not being liable to be questioned would equally apply to the electoral rolls of local bodies. For the reasons we have already given the view consistently taken by this Court that when once a name is found in the electoral roll its inclusion could not be questioned in any election petition must be followed. The decisions of the Madras, Andhra and Kerala High Courts, already referred to, should be held to be erroneous and that of the Gujarat High Court in Mahmadhusein v. O. Fidaali, , Allahabad High Court in Ghulam Mohiuddin v. Election Tribunal, , Bombay High Court in Jagannath v. Sukhdeo, and Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh, as correct. In this case, therefore, it was not open either for the Election Tribunal or for the High Court to go into the question regarding the appellant's age.
In view of this prouncement of the Supreme Court, the learned counsel for the petitioner submits that the decision of the Full Bench of this Court in C. Goverdhanreddy v. Election Tribunal, Bapatla (6 supra) and of another Full Bench in A. Vengamuni v. C. Narayanappa, (F.B.) and also of a Division Bench of this Court in Vijaya Kari v. K. Swarnalatha, (D.B.) are no longer good law on the question relating to the finality of the electoral roll. I agree with the learned counsel for the petitioner. It is now settled law that when once a person's name has been included in the electoral roll, its inclusion cannot be questioned in any election petition.
12. It is to be noticed that the question before the Full Bench in Goverdhanreddy's case (6 supra) was in respect of a candidate and not a voter; the question was whether the election court constituted under the Andhra Pradesh Gram Panchayats Act, 1964 could enquire into the age of a candidate in order to find out whether he was not qualified to stand as a candidate as his inclusion in the electoral roll was bad because he did not have the requisite age when he was enrolled as a voter in the voters list; the question was not whether the election court could enquire into the age of a voter i.e., a person whose name appeared in the electoral roll, to disqualify him from exercising his franchise on the ground that he did not have the requisite age. The Full Bench left the latter question open in that case observing as follows :-
"Thus a distinction was sought to be made between the lack of qualification in a voter and lack of qualification in a candidate. In the present Act also distinction between the right of a person whose name appears in the electoral roll to poll his vote and his right to seek election is very much borne out by the difference in the language of Section 14 (5) and Section 16 of the Act, which has already been adverted to above. That apart, it is very doubtful, to what extent a person, who has incurred the constitutional disability in regard to the age, can validly exercise his vote, simply because his name finds a place in the electoral roll. If he has suffered a constitutional disability, in regard to age, and if for that reason, the very entry of his name in the electoral roll is null and void and non-est, that would mean that he is not a voter and cannot, therefore, exercise his vote. That might lead to the result, that when such persons exercise their franchise in an election, such election would be vitiated by non-compliance with the provisions of the Act or the rules made thereunder. Anyway, the question of validity of a vote is not before us and it is not necessary . 11. " for us to decide that question in these writ petitions. We do not, therefore, propose to deal with that question in these writ petitions."
13. In A. Vengamuni v. C. Narayanappa (12 supra) another Full Bench of this Court had to consider whether the election tribunal constituted under the Ardhra Pradesh Municipalities Act, 1965 had the jurisdiction to go into the question whether certain of the votes were cast by voters who were underaged being less than 21 years of age and therefore invalid. Under the said Act, the electoral roll for the Municipal elections was the same as that prepared for the elections to the Andhra Pradesh Legislative Assembly in so far as it comprised the area of the municipality concerned and every person who appeared in the electoral roll so published so long as it remained in force, was entitled to vote at an election. All the three Judges of the Full Bench in that case held concurrently that it was within the competence of the election tribunal to go into the question whether a person whose name appeared in the electoral roll was not entitled to vote because he was below 21 years of age and that therefore the vote cast by him should be declared as invalid. Narasimham, J., observed that the decision of the Full Bench of this Court in Goverdhan Reddy's case (6 supra) supported his conclusion and disagreed with the view of the Full Bench of the Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh (11 supra) and of the Gujarat High Court in Mahmadhusein v. O. Fidaali (8 supra). M. Krisna Rao, J., held referring to Goverdhan Reddy's case (6 supra) that he was inclined to hold that it made no difference whether the dispute related to the age of a candidate or a voter and that the same principle should be applied even to the case of a voter who was proved to be below the age of 21 years, Kuppuswamy, J., also disagreed with the views of the Full Bench decisions in Roop lal Mehta v. Dhan Singh (11 supra) and Ghulam Mohiuddin v. Election Tribunal (9 supra) and the view of the Gujarat High Court in Mahmadhusein v. O. Fidaali (8 supra). As the [ Supreme Court overruled the Full Bench decision of this Court in Goverdhanreddy's case (6 supra) and held that the decisions of Gujarat, Allahabad and Punjab and Haryana High Courts as correct, it has to be held that the decision of the Full Bench of this Court in A. Vengamuni's case (12 supra) is no longer good law and that when once a person's name has been included in the electoral roll his right to vote cannot be questioned.
14. The decision of the Division Bench of this Court in Vijaya Kari v. K. Swarnalatha (13 supra) is under the Hyderabad Municipal Corporations Act, 1956 and therein it was held following Goverdhan Reddy's case (6 supra) as follows:-
"It is well settled that the Election Tribunal can open up the electoral roll and consider the age on the facts and circumstances in spite of the fact that the different age has been given in the electoral roll and the age specified in the electoral roll is not conclusive and binding upon the Election Tribunal."
The question involved in that case related to the age of a contesting candidate It is unfortunate that the decision of the Supreme Court in R. Chandran's case (3 supra) overruling the Full Bench decision of this Court in Goverdhan Reddy's case (6 supra) was not brought to the notice of the Division Bench in Vijaya Kari's case (13 supra). As Goverdhan Reddy's case (6 supra) was specifically overruled by the Supreme Court and the decision in Vijaya Kari's case (13 supra) was rendered relying on that overruled case, no reliance can be placed on Vijaya Kari's case (13 supra) and I am bound by the decision of the Supreme Court in R. Chandran's case (3 supra) on the question of the finality of the electoral roll and its not being liable to be questioned.
15. However, Goverdhan Reddy's case (6 supra) was decided on the basis of the Act as it was then. Section 14 of the Act considered by the Full Bench in Goverdhan Reddy's case (6 supra) is different from the present Section 14 of the Act which was substituted in the place of the then Section 14 by the Andhra Pradesh Gram Panchayats (Amendment) Act 1978. The then Section 14 required the electoral roll for the gram panchayat to be prepared on the basis of the electoral roll for the Assembly Constituency published under the Representation of the Peoples Act, 1950 as related to the village or any portion thereof. The present Section 14 provides that every gram panchayat shall have an electoral roll which shall be prepared in accordance with the provisions of the Act and in the manner as may be prescribed. Sub-rule (1) of Rule 8 of the Andhra Pradesh Gram Panchayats (Registration of Electors) Rules, 1978 provides that 'the Electoral Authority shall arrange to prepare a draft of the electoral roll under his supervision for each Gram Panchayat in accordance with the provisions of the Act'. Sub-rule (4) of the said Rule 8 provides that 'where the Electoral Authority considers it convenient to do so, he may in the first instance cause to publish an electoral roll prepared for an area comprised in an Assembly Canstituency or an area comprised in a taluk or a district of which the Gram Panchayat is a part, and adopt such part of the electoral roll so prepared as relates to the Gram Panchayat for the purpose of Sub-rule (1)'. Thus, now the electoral rolls for gram panchayats need not be prepared on the basis of the electoral rolls prepared for the Assembly constituencies except when the electoral authority considers it convenient to do so. Section 14-Bof the Act provides for conditions of registration and inter alia it provides that every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in the village shall be entitled to be registered in the electoral roll for the gram panchayat of that village. This prevision is similar to the provision in Section 19 of the Representation of the People Act, 1950 which provides that every person who is not less than 21 years of age on the qualifying date and is ordinarily resident in a Constituency shall be entitled to be registered in the electoral roll for that constituency. The qualifying age in both cases is for registration in the electoral roll. Once a person's name appears in the electoral roll relating to a ward, Sub-section (6) of Section 14-C entitles him to vote at any election which takes place in that ward while the said electoral roll remains in force.
16. Section 16 of the Act deals with qualification of the candidates for election as a member of the gram panchayat. Section 16 of the Act considered by the Full Bench in Goverdhan Reddy's case (6 supra) provided that 'no person shall be qualified for election as a member of a gram panchayat unless his name appears on its electoral roll'. It did not contain any age qualification. Section 16 was amended by the Andhra Pradesh Gram Panchayats (Amendment) Act, 1978 by introducing an additional qualification as regards the minimum age and now it provides that 'no person shall be qualified for election as a member of a Gram Panchayat unless his name appears in its electoral roll and he is not less then 21 years of age'. Similarly, Section 12 of the Act as substituted by the Andhra Pradesh Gram Panchayats (Second Amendment) Act, 1976 provides for a minimum age for standing as a candidate for election as Sarpanch in the following terms :-
"A person shall not be qualified to stand for election as Sarpanch, unless he is not less than twenty one years of age."
But, Sub-section (1) of the substituted Section 12 provides that the Sarpanch for a gram panchayat 'shall be elected in the prescribed manner by the persons whose names appear in the electoral roll for the gram panchayat".
17. In view of the introduction of the age qualification in respect of candidates for election as Sarpanchas and as members of gram panchayats under Sections 12 and 16 of the Act respectively, it may be open now for the election court to enquire into the age of the candidates if a dispute is raised as regards their qualification in respect of their age. But there is no alteration of the position as regards the right to vote of a person whose name appears in the electoral roll. Sub-section (5) of Section 14 of the Act as it was when Goverdhan Reddy's case (6 supra) was decided, is as follows :-
"(5) Every person whose name appears in the part of the electoral roll relating to a constituency shall subject to the other provisions of this Act, be entitled to vote at any election which takes place in that constituency while the electoral roll remains in force and no person whose name does not appear in such part of the electoral roll shall vote at any such elections"
Sub-section (6) of Section 14-C of the Act as it is in force now is in all material respects the same as Sub-section (5) of the then Section 14. Therefore the decision of the Supreme Court in R. Chandran's case (3 supra) applies to the facts of the present case and I hold that the election court (1st respondent) erred in not rejecting ground (e) in the election petition. It is not open to the election court to reject the votes of the persons in Sl. Nos. 1505 and 1519 of the electoral roll on the ground that they are minors; because Sub-section (6) of Section 14-C entitles them to vote and Sub-section (1) of Section 12 provides that the Sarpanch of a gram panchayat shall be elected 'by the persons whose names appear in the electoral roll for the gram panchayat'.
18. The learned counsel for the petitioner is right in contending that the 1st respondent erned in relying on the sole evidence of P.W. 3 the Head Master in holding that 2 voters were minors. P.W. 3 was not the Head Master of the School when the said two persons studied in the School. He only deposes regarding the entries in the admission register relating to the dates of birth of the said persons. He states that the admission register did not contain the signature of the parents or the guardians of the said persons and that he did not know who furnished the information regarding the dates of birth. He also states that he does not know about the correctness or otherwise of the said register. The school register itself was not marked. In the circumstances, the deposition of P.W. 3 is of no value for establishing the date of birth of the said 2 persons. In Birad Mal Singhvi v. Anand Purohit, the Supreme Court observed that parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. The Supreme Court further observed as follows :-
'The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by some one else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8,9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of the date of birth stated in the documents . ...... .... ..... . . ...... The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents, could be proved by admissible evidence i.e., by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts .... .... .... .... In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.' These observations fully support the contentions on behalf of the petitioner.
19. As regards ground (g) the election court itself left open the matter and I do not think that the learned counsel for the 2nd respondent is right in requiring this Court to enquire into the same at this stage. The election court is yet to consider the contentions in respect of the said ground on the basis of the evidence adduced already, keeping in view the observations of the Division Bench of this Court in Narasimhulu v. Laxmaia, 1985 (II) ALT. 270.
20. I am therefore of the view that the 1st respondent erred in allowing I.A.No. 80 of 1990 and in ordering recount of the ballot papers and I set aside its order dated 9-8-1990 in the said I.A.
21. The Writ Petition is allowed. No costs.