J. B. MEHTA, J. ( 1 ) THE petitioner who was the original opponent No. 1 to the election petition has challenged the order of the Election Tribunal viz. the Assistant Judge Panchmahals dated 22nd March 1968 dismissing the petitioners application to treat the list of the voters as conclusive evidence under sec. 10 (3) of the Gujarat Municipalities Act 1963 hereinafter referred to as the Act and to desist from further inquiry by recording evidence as regards the age of the twenty-four voters who have been alleged to be below 21 years of age and were therefore alleged to be not qualified to be included in the voters list. ( 2 ) SEC. 9 (1) provides for the list of voters. It enacts that the electoral roll of the Gujarat Assembly prepared under the provisions of the Representation of the People Act 1950 for the time being in force on such date as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as it included in the relevant ward of a municipal borough shall for the purposes of this Act be deemed to be the list for such ward. ( 3 ) SEC. 9 (2) provides for its publication. Sec. 9 (3) lays-down that if on an application made the Officer who is to maintain the list of voters under sub-sec. 2 or on his own motion the designated officer is satisfied that the list of voters is at variance with the relevant part of the electoral roll of the Gujarat Legislative Assembly on account of any mistake in the list he shall amend the list so as to bring it in conformity with the said electoral roll and for that purpose may amend delete or add any entry in that list. ( 4 ) SEC. 10 provides that every person whose name is in the list of voters referred to in sec. 9 and who is not disqualified under the Act or any other law for the time being in force shall be qualified to vote and every person whose name is not in such list shall not be qualified to vote at the election of a member for the ward to which such list pertains. ( 5 ) SEC. 9 and who is not disqualified under the Act or any other law for the time being in force shall be qualified to vote and every person whose name is not in such list shall not be qualified to vote at the election of a member for the ward to which such list pertains. ( 5 ) SEC. 10 (3) enacts that subject to any disqualification incurred by a person the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be at any election. ( 6 ) SEC. 12 lays-down that no person shall vote at any municipal election under Municipalities Act if he (A) is of unsound mind and stands so declared by a competent Court or (b) is not a citizen of India or has voluntarily acquired the citizenship of foreign State or is under acknowledgment of allegiance or adherance to a foreign State. ( 7 ) SEC. 14 provides for resolution of disputes regarding validity of elections by the judge appointed for the purpose. Sec. 14 (5) (a) (iv) provides that if the judge is satisfied that the result of the election in so far as it concerns the elected candidate has been materially affected by the improper reception of any vote which is void or by any non- compliance with the provisions of this Act or any rules or the orders made under this Act the Judge shall set aside the election. ( 8 ) FROM this scheme of the Act it is clear that sec. 9 by a process of fiction treats electoral roll of the State Assembly for the time being in force on the notified date as the list of voters. Sec. 10 (1) confers the right of voting to every person whose name is on list of voters unless he is disqualified by the Act or by any other law. Sec 12 laying down the disqualification of the voters does not apply in the present case. There fore by reason of sec. 10 all these 24 voters whose names were shown in the list of voters were qualified to vote at lie impugned election has there was he question of any disqualification subsequently incurred by which persons. by reason of sec. There fore by reason of sec. 10 all these 24 voters whose names were shown in the list of voters were qualified to vote at lie impugned election has there was he question of any disqualification subsequently incurred by which persons. by reason of sec. 10 (3) the list of voters has to be treated as conclusive evidence for the purpose of determining under sec. 10 (1) whether these 24 voters were qualified to vote. The Election Tribunal under sec. 14 would not therefore have jurisdiction to permit evidence being led for determining this question whether voters were entitled to vote. This list itself was conclusive evidence by reason of sec 10 (3 ). ( 9 ) MR. Surti argued that under sec. 14 (5) (a) the concerned judge has no jurisdiction to permit fresh evidence on this question as under the Act all these 24 votes by persons admitted to be on the voters list could not be said to be void or vitiated by any provision of the Act or the ruses or orders. This question is completely settled by the decision of the Division Bench in Kantilal Mathurdas Parikh and Others v. She Village Panchayat Shivarajpur and Others IV G. L. R. 929 consisting of Shelat C J. (as he then was) and Bakshi J. The Division Bench interpreted the identical scheme in secs. 12 and 13 of the Bombay Village Panchayat Act as amended by the Gujarat (Adaption of Laws) Order. 1960. Sec. 12 (1) treated the electoral roll of the said assembly in force on the notified date as the list of voters. Sec. 13 (1) provided that every person whose name was on the list was qualified for the vote unless he is disqualified under that Act or under any other law. Sec. 13 (2) made the list of voters conclusive evidence subject to any disqualification incurred for the purpose of determining under sec. 12 (1) whether any person was qualified to vote. The Division Bench on interpretation of this scheme held that the list of voters having been made conclusive by sec. 13 (3) the same cannot be challenged. The names of 125 persons being on the list it could not be disputed that they were entitled to vote by virtue of sec. 12 (1) whether any person was qualified to vote. The Division Bench on interpretation of this scheme held that the list of voters having been made conclusive by sec. 13 (3) the same cannot be challenged. The names of 125 persons being on the list it could not be disputed that they were entitled to vote by virtue of sec. 13 (1) until their names were removed by suitable proceedings from the list of voters for the Assembly election for that particular constituency. The Division Bench in terms followed the decision of the Supreme Court in B M. Ramaswamy v. B. M. Krishnamurthy and others A. I. R. 1963 S. C. 458 where the Supreme Court interpreted identical secs. 9 and 10 of the Mysore Village Panchayats and Local Boards Act (10 of 1959) corresponding to secs. 12 (1) and 13 (1) of the Village Panchayat Act. The Supreme Court held that the Mysore Act proceeded on the basis that the voters list is final for the purpose of election. It was held that there was no provision which enabled the High Court to set aside the election on the ground that though the name of candidate was in the list it had been included therein illegally The Division Bench also distinguished the decision of the Supreme Court in the Chief Commissioner of Ajmer and another v. Radhey Shyam Dani A. I. R. 1957 S. C. 304 holding that it is of the essence of the elections that proper electoral roll should be maintained and in order that proper electoral roll should be maintained it was necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. that case was distinguished on the ground that it was on the special facts and provisions of the Ajmer Statute. In view of secs 12 and 13 of the Village Panchayats Act the Division Bench has not accepted this contention. These authorities would therefore conclude the present question. ( 10 ) MR. that case was distinguished on the ground that it was on the special facts and provisions of the Ajmer Statute. In view of secs 12 and 13 of the Village Panchayats Act the Division Bench has not accepted this contention. These authorities would therefore conclude the present question. ( 10 ) MR. Shelat however vehemently relied upon the decision in S. V. Viswanathan v. Rangaswamy and others A. I. R. 1967 Madras 244 by the Division Bench consisting of M. Anantnarayanan C. J. and Ramakrishnan J. Under the corresponding provisions of the Madras District Municipalities Act 1920 the Division Bench of the Madras High Court held in that case that in view of the fundamental Constitutional provision under Art. 326 prescribing the minimum age of the voters for the assembly elections as 21 years the entry of voters below that age on the electoral roll would be in contravention of the Constitutional provision in Art. 326 of the Constitution. Such an electoral roll prepared under the provisions of Representation of the People Act would be an instrument made under that Act. Such a statutory instrument prepared in violation of the Constitutional provision must be deemed to be void or non-est or nullity and if the voters name is non-est on the electoral roll it would the equally nonest on the voters list of the Municipal Ward and therefore reception of such vote of non-est voters would be void. The Division Bench distinguished the decision of the Supreme Court in B. M. Ramaswamy v. B. M. Krishnamurthy and others A. I. R. 1963 Supreme Court 458 by relying upon the following passage at p. 461:-THE terms of the section are clear and the action of the electoral registration officer in including the name of the appellant in the electoral roll. though illegal cannot be questioned in a civil Court; but it could be rectified only in the manner prescribed by law i. e. by preferring any appeal under R. 24 (sec. 27) of the Rules or resorting to any other appropriate remedy. But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. . . . . . . . But it was contended before the High Court that the action of the electoral registration officer was a nullity inasmuch as he made the order without giving notice as required by the Rules. We find it difficult to say that the action of the electoral registration officer is a nullity. . . . . . . . Such non-compliance cannot make the officers act non-est though his order may be liable to be set aside in appeal or by resorting to any other appropriate remedy. With great respect to the learned Judges of the Madras High Court I cannot agree. There the learned Judges had not considered the important question as to the jurisdiction of the Electoral Registration Officer which was elaborately considered by the Supreme Court. It is true that the Supreme Court in terms dealt only with the question of non-compliance of the procedure before making the entries In the roll and it was held that such non-compliance did not affect the jurisdiction of the said Officer though it might reader his action illegal. On a parity of reasoning the Electoral Registration Officer bad complete jurisdiction to decide all the facts in issue for enrolling a voter on the electoral roll as to whether he fulfilled all the conditions as regards age citizenship or residence. This was not a finding on any collateral issue but a finding on facts in issue before the Electoral Registration Officer whose decision was made final and sec. 30 of the Representation of the People Act 1950 even excluded the jurisdiction of the Civil Courts to question the illegality of action taken by or under the authority of Electoral Registration Officer. It was in view of this special scheme which gave finality to the decision of the Electoral Registration Officer on all matters left to his decision by the Legislature regarding qualifications of the persons concerned that the Supreme Court held that the action of the Electoral Registration Officer in including the names of the persons on the Electoral Roll though illegal could not be questioned in the Civil Courts. It could be rectified only in the manner prescribed under the Representation of the People Act by preferring an appeal or by resorting to any other appropriate remedy. It could be rectified only in the manner prescribed under the Representation of the People Act by preferring an appeal or by resorting to any other appropriate remedy. ( 11 ) IN the subsequent decision the Supreme Court dealt with this question in M/s. Kamla Mills Ltd. v. State of Bombay A. I. R. 1965 S. C. 1942 On an examination of relevant provisions of the Bombay Sales Tax Act 1946 which conferred jurisdiction on the appropriate authorities to levy assessment on the dealers in respect of transactions to which the charging section applied. The Supreme Court held that the questions pertaining to the liability of the dealers to pay assessment in respect of their transactions were expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. The whole activity of assessment which began with the filing of the return and ended with an order of assessment fell within the jurisdiction of the appropriate authority under the Act. No part of it constituted a collateral activity not specifically and expressly included in the jurisdiction of the appropriate authority as such. In this view of the matter it was held by the Supreme Court that the finding of the appropriate authority that a particular transaction was taxable under the charging section was not therefore a finding on a collateral fact and decisions as to the character of the sale transactions on which a dealer had been taxed could not be said to be without jurisdiction. Therefore even if the authority while exercising such jurisdiction erroneously held that a transaction which is an outside-sale within the meaning of Art. 286 of the Constitution as it stood in 1956 was not an outside sale and proceeded to levy sales tax on it the decision of the appropriate authority could not be said to be without jurisdiction. The Supreme Court kept open the question whether such a conclusion could be challenged under Article 226 or Article 32 of the Constitution. The Supreme Court kept open the question whether such a conclusion could be challenged under Article 226 or Article 32 of the Constitution. Therefore merely because the question involved was as to the age of the voter which by a Constitutional provision could not be less than 21 it could not be presumed as the learned Judges of the Madras High Court have done that this would be a finding on any collateral fact by the Electoral Registration Officer and that if he committed any error in giving the decision on this question on a matter which was left to his exclusive jurisdiction the decision would be without jurisdiction or nullity or non-est in the eye of law. In view of this settled legal position there is no ground on which the aforesaid decision of the Supreme Court in B. M. Ramaswamy v. B. M. Krishnamurthy and others which was followed by our Division Bench could be distinguished because the question as regards the minimum age of the voter is also expressly left to be determined as a fact in issue by the Electoral Registration Office who prepared electoral roll for the State Assembly. ( 12 ) MR. Shelat bad relied upon the decisions of the full Bench of the Kerala High Court in P. Kunhiraman v. V. R. Krishna Iyer A. I. R. 1962 Kerala 190 and by Satyanarayana Raju J. in Viswanadhuni Venkatokondavya v. Election Commissioner A. I. R. 1955 A. P. 109. All of them proceeded on same reasoning that the question of age being one under Art. 326 of the Constitution the decision of the Electoral Registration Officer would not be final when it is in contravention of this fundamental Constitutional provision. As I have already shown this is not the question which yearly arises and the real question is as regards the jurisdiction of Electoral Registration Officer as to whether his decision on this question of age was a decision without jurisdiction or nullity as assumed in all these decisions. ( 13 ) MR. Shelat however argued that the sec. 9 (3) only provided a machinery for bringing the voters list in accordance with the electoral roll and there was no machinery for adjudication of disputes as to the entry on the electoral roll. ( 13 ) MR. Shelat however argued that the sec. 9 (3) only provided a machinery for bringing the voters list in accordance with the electoral roll and there was no machinery for adjudication of disputes as to the entry on the electoral roll. This is the point which is already answered by our Division Bench in the aforesaid decision in Kantilal Mathurdas Parikh and others v. The Village Panchayat of Shivrajpur and others IV G. L. R. 929 and. therefore this contention cannot be accepted that no machinery has been provided The Electoral Registration Officer could have been moved and once he amended the electoral roll of the State Assembly the voters list of the Constituency would be brought in the line of with the same. ( 14 ) MR. Shelat finally argued that the voters list is conclusive evidence only at the time of nominations but the Election Tribunal could go into this question. This contention is contrary to the very language of sec. 10 (3) and is already concluded by the Supreme Court in the case of B. M. Ramaswamy v. B. M. Krishnamurthy and others ( 15 ) MR. Surti rightly relied upon the decision of the Full Bench of the Pun jab High Court in Roop Lal Mehta v. Dhan Sing and others A. I. R. 1968 Punjab p. 1 and of the Full Bench of Allahabad High Court in Gulam Mohiuddin v. Election Tribunal for Town Area Sakit and another A. I. R. 1959 All. 357 which treat the voters list in such cases as conclusive and do not permit the Election Tribunal to hold an inquiry on the question of minimum age as required under Article 326 of the Constitution. These decisions are in line with the view taken by our Division Bench. ( 16 ) IN the result the Election Tribunal is acting without jurisdiction in proceeding to record evidence on the question of age of 24 voters in question and it bad wrongly rejected the petitioners application. Therefore this petition is allowed and the order of the learned Assistant Judge is set aside and he is prohibited from taking evidence on this question of the age of 24 voters and he is directed to dispose of the election petition in accordance with the law as expeditiously as possible because sufficient time has now elapsed. Therefore this petition is allowed and the order of the learned Assistant Judge is set aside and he is prohibited from taking evidence on this question of the age of 24 voters and he is directed to dispose of the election petition in accordance with the law as expeditiously as possible because sufficient time has now elapsed. ( 17 ) RULE is accordingly made absolute and respondents Nos. 1 to 9 are ordered to pay costs of the petitioner. Rule made absolute. .