JUDGMENT
S. Ramachandra Iyer, C.J.
1. This is a petition under Article 227 of the Constitution to revise the order of the Election Commissioner, (District Munsif, Salem) setting aside the election of the petitioner to the office of President of Thirumalagiri Panchayat. The petitioner and the first respondent who had both been elected as members of the Panchayat were competing candidates for the presidentship thereof. In the election held for the purpose at the meeting of the members of the Panchayat on 24th June, 1959, the petitioner who secured a larger number of votes was declared elected. Disappointed at the result of the election the first respondent filed a petition before the-Election Commissioner challenging the election of the petitioner as President under the rules framed under Section 112(2)(i) of the Madras Village Panchayats Act, 1950, also praying that the election of the petitioner should be set aside and that he should be declared as duly elected for the office. The only ground alleged in support of the petition was that on the date of the election, the petitioner had not completed the age of 21 years as required by the statute and being born only on 17th July, 1940, the inclusion of his name on the electoral rolls of the Panchayat was improper and that, therefore, the election was void. The electoral roll which has been exhibited in the case, though prepared in the year 1953 was corrected up to the year 1958. It shows the petitioner’s age to be 22 years. The petitioner denied that he was less than 21 years of age on the date of the election contending that his date of birth was 15th December, 1936 and not 17th July, 1940 as alleged by the petitioner. In a fairly well reasoned order the Election Commissioner held that the petitioner must have-been born only in the year 1940 and that the inclusion of his name in the electoral roll was incorrect and improper observing
since the first respondent (petitioner) is of under age even to become a voter, his seat as member of the Panchayat also would become vacant….
On that finding he set aside the election of the petitioner as President of the Panchayat, but nothing was said about his membership of the Panchayat evidently for the reason that the petition did not pray for any relief in that regard.
2. That order of the Election Commissioner is challenged in this Civil Revision Petition. The finding of the Election Commissioner that the true date of birth of the petitioner was 17th July, 1940 besides being justified on the evidence is one of fact which will be binding on me in this Revision Petition.
3. One contention of the petitioner before the Election Commissioner was that the recital as to the age of the petitioner in the electoral roll was conclusive on the question and that it was not competent for that authority to investigate into the correctness thereof. The Election Commissioner has rightly overruled this objection. Section 12 of the Madras Village Panchayats Act, 1950, provides for the preparation and publication of the electoral roll and the qualifications for inclusion of names of persons therein. Sub-section (1) to that section provides that every person whose name is included in such part of the electoral roll for any Assembly Constituency as relates to the village or any portion thereof would be entitled to be included in the electoral roll for the Panchayat. Dealing with the electoral rolls for the Assembly Constituency, Section 19 of the Representation of the People Act, 1950, prescribes that a person should not be less than 21 years of age on the qualifying date to entitle him to-be registered on the electoral roll. It can, therefore, be taken that unless the petitioner had completed the age of 21 years on the date of the preparation of the electoral roll his name could not be deemed to have been properly included therein. Section 13 of the Madras Village Panchayats Act states that no person shall be qualified for election as member of a Panchayat unless his name appears on its electoral roll. It must, therefore, be taken that the qualification as to age is an essential requisite for election to the Panchayat as well. In Venkata Kondayya v. Election Commissioner 1958 An.W.R. 133 : A.I.R. 1955 And 109, the Andhra High Court accepted this view and held that the qualification as to age should be satisfied before a person can stand as a candidate for election as a member of a Panchayat but that conclusiveness of the electoral roll would not avail against a statutory disqualification, namely, a voter not having completed the-age of 21 years.
4. There can, therefore, be no doubt that the election of the petitioner as a member of the Panchayat and his further election as President of the Panchayat can be declared void by taking appropriate proceedings for the purpose.
5. Unfortunately however the first respondent did not file any petition to set aside the election of the petitioner as a member of the Panchayat. He challenged only the petitioner’s election as President of the Panchayat and even that is purported to-be done under rules framed under Section 112(2)(i) of the Act, that is, under rules framed by G.O.Ms. No. 602, L.A., dated 5th April, 1958 and the Rules Framed For The Decision Of Election Disputes which are contained at pages 430 and 318 of the Madras Law Journal Edition of the Madras Village Panchayat Act, 1950. Rule 11(c) of the Rules Framed for The Decision of Election Disputes provides for setting aside of an election if it has been materially affected by any irregularity in respect of any non-compliance with the provisions of the Act or the rules made thereunder. It is a general principle and indeed it is recognised in Rule (1) itself, that save as-otherwise provided, no election held under the Act whether of a member, President or Vice-President of a Panchayat shall be called in question except by an election petition presented in accordance with the rules. Therefore, so long as the election. of the petitioner as a member of the Panchayat has not been challenged, there can be-no objection to his election as President of the Panchayat on the ground that he was not qualified to be a member. The Election Commissioner has in a way adverted to this matter when he stated that the petitioner had to vacate his seat in the Panchayat itself. I am however, unable to see how that can follow particularly when there-has been no petition to declare the petitioner as not having been validly elected as member of the Panchayat.
6. Realising the difficulty that the rules relating to decision of election disputes; might not help the respondent learned Counsel appearing for him contended that the order of the Election Commissioner should be deemed to be one under Section 19 of the Act. But there is no reference to the section in the petition. Section 19 confers a power on the prescribed judicial authority to decide, whether a person who has been elected as a member of a Panchayat is qualified or whether he has become disqualified under Sections 13, 15, 16 or 17 of the Act. The case of a person who is less than 21 years of age if he gets elected would obviously come under that section. Mr. T.M. Chinniah Pillai, appearing for the petitioner contends that Section 19 would not apply to the case as proceedings thereunder could be initiated only at the direction of the Panchayat or the Inspector. This contention, however, is not correct. The words “on the direction of the Panchayat or of the Inspector” occurring in Section 19 will apply only to the Executive Authority. There is no such fetter in regard to any application by a member in regard to qualification either of himself or of another member. Recently I had occasion to consider this question in some detail” in Siva Perumal Rounder v. Munuswami Rounder C.R.P. No. 206 of 1961 and I came to the conclusion that no sanction of the Executive Authority or the Panchayat would be necessary for one member impugning the qualification of another member to sit in the Panchayat. Section 19 in terms would apply only when a question as to the qualification of a member of the Panchayat arises. It does not in terms refer to the case of the President of the Panchayat. If the validity of the election of a person as member of the Panchayat is challenged under Section 19 of the Act and it is declared that the member is not qualified to get himself elected, his further election as President of the Panchayat would automatically fall to the ground. In the present case the first respondent has so to say put the cart before the horse. He did not challenge the qualification of the petitioner to become a member of the Panchayat, but he has chosen to challenge only his election as President of the Panchayat: he has even gone further in asking for a declaration that he must be deemed to have been duly elected as President. It is well settled that a right to get elected to a representative body is not a common law right but is the creation of the statute. Whether a person elected could retain the office or vacate it has to be determined by the terms of the statute and if the statute provides for no remedy for declaring an election void apart from the procedure prescribed by it, any party wishing to challenge the election should adopt that procedure. If he does not choose to do so, the election will have to stand though in fact circumstances exist which would render it void. In this case there was no petition to declare that the petitioner was not qualified to be elected as a member of the Panchayat and that his election as a member was void. It must be taken that his election to that office is therefore valid. If his election as member is Valid, it follows that his election as President of the Panchayat should also be valid. In my opinion, so long as there is no petition by the first respondent for a declaration that the petitioner has not been duly elected as a member of the Panchayat, it would not be open to the Election Commissioner to set aside his election as President of the Panchayat on the ground that he had not completed 21 years of age on the date of the inclusion of his name in the electoral roll of the Panchayat. The order of the Election Commissioner has therefore, to be set aside for this reason The Civil Revision Petition is allowed: but there will be no order as to costs.
