The votes of persons whose names were on the electoral roll but who were less than 21 years of age on the qualifying date could not be challenged as being void under Section 100 (1) (d) (iii) of the Representation of the People Act, 1951.

S.B.Capoor, J.

1. The question which has been referred to the Full Bench in -- "whether in the election petition made to the High Court under Section 80 read with Section 80-A of the Representation of the People Act No. 43 of 1951 (hereinafter referred to as the 1051 Act) as amended by the Representation of the People (Amendment) Act, 1966, some of the votes cast are open to challenge under Section 100 (1) (d) (iii) and (iv) of the Act on the ground that the persons so voting at the election were below the age of 21 years on the qualifying date". Section 100 contains the grounds for declaring election to be void and so far as relevant provides that if the High Court is of opinion ***** (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -

(i)* * * * *

(ii) * * * * *

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, then the High Court shall declare the election of the returned candidate to be void. The relevant provision of the Constitution of India is Article 326 and since most of the controversy hinges on the interpretation of this article, it is necessary to reproduce it :-

"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 he 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".

2 Mr. P C. Jain who appears on behalf of the petitioner in the election petition, in which the challenge to some of the votes cast at the impugned election to the Legislative Assembly. Haryana, was made on the ground of voters being below the age of 21, seeks to interpret the constitutional provision as containing a prohibition to any one less than 21 years of age on the qualifying date from voting in the election according to his submission, it is a void vote within Sub-clause (iii) above and is also in breach of the provisions of Article 326 of the Constitution. He supported his argument by reference to the Full Bench decision of the Kerala High Court P. Kunhiraman V/s. V. R. Krishna Iyer, AIR 1962 Ker 190.

3. Article 327 of the Constitution of India is with regard to the power of Parliament to make laws with respect to all matters relating t o, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Under Article 328, in so far as provision in that behalf is not made by Parliament, the Legislature of a State may also make provision in connection with matters relating to the elections to the House or either House of the Legislature of the State (but not the delimitation of the constituencies).

In pursuance of the powers conferred by Articles 326 and 327 of the Constitution, the Parliament promulgated the Representation of the People Act No. 43 of 1950 (hereinafter referred to as the 1950 Act), which, as the long title would indicate, makes provision for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of