R.Dayal, J. - (1.) 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 Tri-bunal 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 pre-election stage or also to the post-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 26-2-1948 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." 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."
(3.) 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.;