REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1198 OF 2007
G.S.Iqbal ... Appellant
Versus
K.M. Khadar & Ors. ..Respondents
JUDGEMENT
R.M. Lodha, J.
The unsuccessful election petitioner is in appeal
aggrieved by the judgment dated March 28, 2006 of the Madras
High Court whereby his election petition in challenging the election
of respondent no. 2 has been dismissed.
2. The appellant (hereinafter referred, `the petitioner’) is an
electorate of No. 7, Vellore Parliamentary Constituency, having
electoral No. 555 in the electoral list. General Elections to
constitute the 14th Lok Sabha took place in the months of April-May,
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2004. To represent the said constituency, 19 candidates contested
election; K.M. Khader Mohideen being one of them. The petitioner
is the general secretary of Dravida Muslim Munnertra Kazhagam.
This party supported AIADMK candidates in the 14th Parliamentary
election in Tamil Nadu.
3. K.M. Khader Mohideen contested the 14th Lok Sabha
elections, on the symbol of DMK party. The polling took place on
May 10, 2004 and the results were declared on May 13, 2004. He
was declared elected from No. 7, Vellore Parliamentary
Constituency. We shall refer him hereinafter, `returned candidate’.
4. The petitioner challenged the election of the returned
candidate by filing election petition on the grounds set out in Section
100(1)(d) (i) and (iv) of the Representation of People Act, 1951 (for
short , `Act, 1951′)
5. The petitioner set up the case that the returned
candidate did not belong to the DMK party; that he falsely alleged
at the time of filing the nomination that he belonged to DMK party;
that in fact the returned candidate belongs to Indian Union Muslim
League party (IUML) and he is also the President of the Tamil
Nadu Indian Union Muslim League (TNIUML); that IUML is a
registered as well as recognized political party in the State of
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Kerala with a reserved symbol of “Ladder”; that the nomination of
the returned candidate suffered from violation of Section 13 of the
Election Symbols (Reservation and Allotment) Order, 1968 (for
short, `Symbols Order, 1968′), that the presentation of nomination
paper by the returned candidate was not in accordance with law
and rather was a clear violation of the provisions of the Act, 1951;
that there was an improper acceptance of nomination of the returned
candidate; that the entire electorate of the Vellore constituency were
misled and deceived by the returned candidate that he belonged to
DMK party and because of the adoption of deceptive tactic and
camouflage of the returned candidate that he belonged to DMK party
which in fact he was not and, therefore, the result of the election in
No. 7, Vellore constituency was materially affected. The petitioner,
thus, prayed that the election of the returned candidate be declared
void under Section 100 (1)(d)(i) and (iv) of the Act, 1951.
6. The returned candidate resisted the election petition and
raised diverse pleas in the written statement: that the election
petition was not maintainable and it lacked cause of action; that it
does not allege violation of any specific provision of the Act, 1951;
that the nomination filed by him on May 19, 2004 was objected to
and the returning officer overruled the objection and held that
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nomination was in order; that he produced his membership card of
the DMK party before the returning officer; that Forms A and B were
filed at the time of nomination itself and there was no violation of
Symbols Order, 1968; that his nomination was proper and did not
suffer from any infirmity and rightly accepted by the returning officer
and that there was no violation of any law or there was no violation
or non-compliance with the provision of the Constitution or of the
Act, 1951 or any rules or orders made under the Act, 1951.
7. In view of the pleadings of the parties; the designated
Election Judge framed the following issues:
(i) Whether the nomination filed by the second
respondent is valid in law as prescribed under the
Rules ?
(ii) Whether the acceptance of the nomination of the
second respondent is proper and valid in the light
of prescribed rules and regulations and the
provisions of Representation of the People Act,
1951?
(iii) Whether the presentation and acceptance of
nomination of the second respondent has
materially affected the result of the elections?
8. The designated Election Judge examined the returning
officer as CW-1 and through whom Ex.C-1 to C-9 were marked.
The petitioner examined the general secretary of Muslim League
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party as PW.1, the organisation secretary of DMK party as PW.2
and examined himself as PW.3. He also produced 19 documents
marked Ex. P-1 to P-19. The returned candidate examined himself
as RW.1 and produced 3 documents marked Ex. R-1 to R-3.
9. The designated Election Judge after hearing the parties,
recorded his findings on all the three issues against the petitioner
and, accordingly, dismissed the election petition.
10. Mr. A. Palaniappan, learned counsel for the petitioner
strenuously urged that the returned candidate was not a valid
member of DMK party on the date of filing of nomination papers as
he continued to be member of Tamil Nadu Indian Union Muslim
League which is State unit of Indian Union Muslim League.
Learned counsel would submit that the returned candidate was
member of two political parties at the time of filing the nomination
and, thus, the acceptance of his nomination was invalid being in
violation of Section 100(1)(d)(iv) of the Act, 1951. He would submit
that the returned candidate had violated the provisions of the Act,
1951 as well as Symbols Order, 1968. According to him Symbols
Order, 1968 provides that a candidate set up by a party shall be a
member of that party alone to use the symbol of that party but the
returned candidate continued to sustain his claim that he was a
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member of DMK as well as IUML. The learned counsel
contended that the fielding of returned candidate by the DMK was
in contravention of Section 29A of the Act, 1951 as he belonged to
another political party. The learned counsel would submit that the
returned candidate continued to claim that he was a member of two
political parties simultaneously which is inconsistent with the
provisions of Tenth Schedule of the Constitution. The learned
counsel submitted that the returned candidate hoodwinked the
electorate by falsely alleging that he was a member of DMK party
and stood in the Rising Sun symbol for which he was not legally
entitled and thereby he had procured and obtained substantial
votes by misleading the electorates and, therefore, his election was
liable to be set aside.
11. On the other hand, Mr. M. Sundar, learned counsel for
the returned candidate supported the view of the High Court.
12. Section 100 of the Act, 1951 sets out the grounds for
declaring election void. It is now more than well settled that the
grounds for declaring an election to be void must conform to the
requirement of Section 100 of Act, 1951.
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13. In the election petition, the petitioner sought declaration
of the election of returned candidate to be void under Section 100(1)
(d)(i) and (iv). The said provisions read thus:
“100. Grounds for declaring election to be void
(1) Subject to the provisions of sub-section (2) if
the High Court is of opinion –
(a) …….
(b) …….
(c) …….
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected –
(i) by the improper acceptance or any
nomination,
or
(ii) .......
(iii) .......
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules of orders made
under this Act,
the High Court shall declare the election of the
returned candidate to be void.”
14. That the returned candidate contested the election in the
14th Parliamentary Elections for Vellore Parliamentary Constituency
as a DMK candidate on its symbol is not in dispute. That DMK is a
party registered with the Election Commission as a political party
under Section 29A of the Act, 1951 is again not in dispute. That
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the returned candidate had produced his membership card of DMK
party with the returning officer before the scrutiny of nomination
papers is satisfactorily established on record. From the oral
evidence of CW.1 as well as the documentary evidence produced by
him (Ex. C-1 to C-9), it is seen that Forms A and B were in order
and met the requirement of Symbols Order, 1968. After careful
sifting the evidence of the returning officer (CW.1) and the
documentary evidence (Ex. C-1 to C-9), the designated Election
Judge reached the conclusion that the nomination papers of the
returned candidate were complete on the date of scrutiny and that
there was no false declaration by him before him. The designated
Election Judge also concluded that the returned candidate has not
violated any of the provisions of the Symbols Order and there was
absolutely no illegality, infirmity or impropriety in the acceptance of
the nomination papers of the returned candidate. Having
considered the matter thoughtfully, we find no justifiable reason to
take a view different from that of designated Election Judge.
15. Tamil Nadu Indian Union Muslim League (TNIUML) was
not registered political party in Tamil Nadu in so far as the 14th Lok
Sabha Election is concerned within the meaning of the Act, 1951.
This fact is established by perusal of the list of registered political
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parties published by the Tamil Nadu State Election Commission on
06.05.2004 (Ex.R-2) and the list of registered but unrecognized
political parties in India published by the Election Commission of
India on 27.09.2005 (Ex.R-3). Since it was not a registered political
party within the meaning of the Act, 1951, admittedly no symbol was
allotted to that party in that election. The petitioner relied upon Ex.
P-18 which only pertained to Panchayat Election and rightly held to
have no application to Assembly and Parliamentary elections. As a
matter of fact the entire edifice built by the petitioner that returned
candidate was a member of two political parties has no factual or
legal foundation. From the material that has been placed on
record, the designated Election Judge found that there was nothing
to infer that the returned candidate was a member of two registered
political parties on the date of nomination. We find no error in the
finding recorded by him.
16. It was submitted on behalf of the petitioner that the
returned candidate claimed that he became a member of the DMK
party on April 1, 2004 but he did not resign from the primary
membership of TNIUML before he joined the DMK and thus, there
was a clear legal bar for the returned candidate to become a
member of the DMK.
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17. The submission of the learned counsel is misplaced as it
assumes that TNIUML was a registered political party with the
Election Commission for the purposes of the 14th Lok Sabha election
in Tamil Nadu. We find that the material placed on record lacks
cogent evidence in establishing TNIUML as a registered political
party. The reliance placed by the learned counsel on Section 29A of
the Act, 1951 is bereft of any substance. Moreover, as to
whether
the returned candidate as a member of TNIUML could have become
member of another political party viz., DMK as per their bye-laws or
vice-versa or not is not of any significance in view of the fact that
it is the DMK party that nominated the returned candidate as its
candidate on its party symbol for contesting the 14th Parliamentary
Election from No. 7 Vellore Parliamentary Constituency. Further, it
has come on record that in Tamil Nadu with regard to the 14th Lok
Sabha General Elections, the political parties aligned themselves into
two major poll formations: (i) DPA – headed by DMK and (ii) NDA –
headed by AIADMK. Thus, there was pre-poll alliance amongst
various political parties. In so far as TNIUML is concerned, it
aligned with DMK. It has come on record that there was
unanimous resolution of the executive committee of TNIUML that the
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returned candidate would contest the 14th Lok Sabha General
Elections from No.7, Vellore Constituency in the Rising Sun symbol
of DMK party. In this view of the matter even otherwise there was
no impediment for the returned candidate becoming the member of
DMK party and contesting election from No. 7, Vellore
Parliamentary Constituency on the symbol of DMK.
18. Section 36 of the Act, 1951 deals with scrutiny of
nomination papers by the returning officer. Section 36(2) which is
relevant for the present purpose reads thus:
“(2) The returning officer shall then examine the
nomination papers and shall decide all objections
which may be made to any nomination and may,
either on such objection or on his own motion, after
such summary inquiry, if any, as he thinks
necessary refuse any nomination on any of the
following grounds:-
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not
qualified or is disqualified for being chosen to
fill the seat under any of the following
provisions that may be applicable, namely:-
Articles 84, 102, 173 and 191
Part II of this Act, and Sections 4 and 14 of
the Government of Union Territories Act,
1963 (20 of 1963); or
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(b) that there has been a failure to comply with
any of the provisions of Section 33 or Section
34;
Or
(c) that the signature of the candidate or the
proposer on the nomination paper is not
genuine.”
19. What is really important is that on the date of the
scrutiny of nomination, the candidate must be qualified and must
not, for the election of Lok Sabha, have incurred disqualification
under Articles 84 and 102 of the Constitution or there must not have
been non-compliance with any of the provisions of Section 33 or 34
of the Act, 1951.
20. Sections 33 and 34 of the Act, 1951 provide thus:
“33. Presentation of nomination paper and
requirements for a valid nomination–(1) On or
before the date appointed under clause (a) of
section 30 each candidate shall, either in person or
by his proposer, between the hours of eleven
O’clock in the forenoon and three O’clock in the
afternoon deliver to the returning officer at the place
specified in this behalf in the notice issued under
section 31 a nomination paper completed in the
prescribed form and signed by the candidate and
by an elector of the constituency as proposer:
Provided that a candidate not set up by a
recognized political party, shall not be deemed to
be duly nominated for election from a constituency12
unless the nomination paper is subscribed by ten
proposers being electors of the constituency:
…………………………………..
.
(2) In a constituency where any seat is reserved,
a candidate shall not be deemed to be qualified to
be chosen to fill that seat unless his nomination
paper contains a declaration by him specifying the
particular caste or tribe of which he is a member
and the area in relation to which that caste or tribe
is a Scheduled Caste or, as the case may be, a
Schedule Tribe of the State.
(3) Where the candidate is a person who, having
held any office referred to in section 9 has been
dismissed and a period of five years has not
elapsed since the dismissal, such person shall not
be deemed to be duly nominated as a candidate
unless his nomination paper is accompanied by a
certificate issued in the prescribed manner by the
Election Commission to the effect that he has not
been dismissed for corruption or disloyalty to the
State.
(4) On the presentation of a nomination paper,
the returning officer shall satisfy himself that the
names and electoral roll numbers of the candidate
and his proposer as entered in the nomination
paper are the same as those entered in the
electoral rolls:
Provided that no misnomer or inaccurate
description or clerical, technical or printing error in
regard to the name of the candidate or his proposer
or any other person, or in regard to any place,
mentioned in the electoral roll or the nomination
paper and no clerical, technical or printing error in
regard to the electoral roll numbers of any such
person in the electoral roll or the nomination paper,
shall affect the full operation of the electoral roll or
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the nomination paper with respect to such person or
place in any case where the description in regard to
the name of the person or place is such as to be
commonly understood; and the returning officer
shall permit any such misnomer or inaccurate
description or clerical, technical or printing error to
be corrected and where necessary, direct that any
such misnomer, inaccurate description, clerical,
technical or printing error in the electoral or in
the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a
different constituency, a copy of the electoral roll of
that constituency or of the relevant part thereof or a
certified copy of the relevant entries in such roll
shall, unless it has been filed along with the
nomination paper, be produced before the returning
officer at the time of scrutiny.
(6) Nothing in this section shall prevent any
candidate from being nominated by more than one
nomination paper:
Provided that not more than four nomination
papers shall be presented by or on behalf of any
candidate or accepted by the returning officer for
election in the same constituency.
(7) Notwithstanding anything contained in sub-
section (6) or in any other provisions of this Act, a
person shall not be nominated as a candidate for
election,–
(a) in the case of a general election to the
House of the People (whether or not
held simultaneously from all
Parliamentary constituencies), from
more than two Parliamentary
constituencies;
. . . . . .. . . . .. . . . . . .. . . . . .. . . . .. . . . .
.
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34. Deposits–(1) A candidate shall not be
deemed to be duly nominated for election from a
constituency unless he deposits or causes to be
deposited,–
(a) in the case of an election from a
Parliamentary constituency, a sum of
ten thousand rupees or where the
candidate is a member of a Scheduled
Caste or Scheduled Tribe, a sum of five
thousand rupees; and
(b) in the case of an election from an
Assembly or Council constituency, a
sum of five thousand rupees or where
the candidate is a member of a
Scheduled Caste or Scheduled Tribe, a
sum of two thousand five hundred
rupees:
Provided that where a candidate has been
nominated by more than one nomination paper for
election in the same constituency, not more than
one deposit shall be required of him under this sub-
section.
(2) Any sum required to be deposited under
sub-section (1) shall not be deemed to have been
deposited under that sub-section unless at the
time of delivery of the nomination paper [under sub-
section(1) or, as the case may be, sub-section (1A)
of section 33] the candidate has either deposited or
caused to be deposited that sum with the returning
officer in cash or enclosed with the nomination
paper a receipt showing that the said sum has been
deposited by him or on his behalf in the Reserve
Bank of India or in a Government Treasury.”
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21. As a matter of fact, the petitioner neither specifically
pleaded nor proved that there has been non-compliance with any of
the Provisions of Section 33 or 34 of the Act, 1951. Thus, on the
date fixed by returning officer for scrutiny of the nomination papers,
there was no ground made out for rejection of nomination of the
returned candidate under Section 36(2)(b) of the Act, 1951.
22. Article 84 of the Constitution makes the provision for
qualification for membership of Parliament which reads thus:
“84. Qualification for membership of Parliament
– A person shall not be qualified to be chosen to fill
a seat in Parliament unless he –
(a)is a citizen of India, and makes and subscribes before some
person authorized in that behalf by the election Commission
an oath or affirmation according to the form set out for the
purpose in the Third Schedule;
(b)is, in the case of a seat in the Council of States, not less
than thirty years of age and, in the case of a seat in the
House of the People, not less than twenty-five years of age;
and
(c) possesses such other qualifications as may be prescribed
in that behalf by or under any law made by Parliament.”
23. That the returned candidate meets the aforesaid qualification
prescribed under the Constitution is not in dispute. Thus, it has to be
held that the returned candidate possessed qualification for
membership of parliament.
24. Article 102 of the Constitution is as follows:
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“102. Disqualifications for membership –
(1) A person shall be disqualified for being
chosen as, and for being, a member of either
House of Parliament –
(a) if he holds any office of profit under the Government of
India or the Government of any State, other than an office
declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament.”
(2) A person shall be disqualified for being
a member of either House of Parliament if he
is so disqualified under the Tenth Schedule”.
25. There is not even whisper either in the election petition
or the evidence let in by the petitioner that the returned candidate is
disqualified under Article 102(1)(a) to (d) for being chosen as a
Member of Lok Sabha. The learned counsel for the petitioner would
contend that a person shall be disqualified under Article 102(1)(e)
and (2) for being chosen as a Member of Parliament if he is so
disqualified under the Tenth Schedule. He would also contend that
since the returned candidate continued to be member of two political
17
parties viz., DMK and TNIUML even after his election, he has even
otherwise incurred disqualification under the Tenth Schedule.
26. Tenth Schedule was added in the Constitution by the
Constitution (52nd Amendment) Act, 1985 whereby the Provisions
as to disqualification on the ground of defection have been made
part of the Constitution itself.
27. Paragraph 2 of the Tenth Schedule, provides for
disqualification on the ground of defection which is as follows:
“2. Disqualification on ground of defection –
(1) Subject to the provisions of paragraphs 4 and 5,
a member of a House belonging to any political
party shall be disqualified for being a member of
the House –
(a)if he has voluntarily gives up his membership of such
political party; or
(b)if he votes or abstains from voting in such House contrary to
any direction issued by the political party to which he
belongs or by any person or authority authorized by it in this
behalf, without obtaining, in either case, the prior permission
of such political party, person or authority and such voting or
abstention has not been condoned by such political party,
person or authority within fifteen days from the date of such
voting or abstention”
28. Paragraph 6 of the Tenth Schedule provides for
adjudicatory machinery for determination of the questions of
disqualification on the ground of defection. It is thus:
“6. Decision on questions as to disqualification
on ground of defection – (1) If any question arises
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as to whether a member of a House has become
subject to disqualification under this Schedule, the
question shall be referred for the decision of the
Chairman or, as the case may be, the Speaker of
such House and his decision shall be final:
Provided that where the question which has arisen
is as to whether the Chairman or the Speaker of a
House has become subject to such disqualification,
the question shall be referred for the decision of
such member of the House as the House may elect
in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of
this paragraph in relation to any question as
to disqualification of a member of a House
under this Schedule shall be deemed to be
proceedings in Parliament within the meaning
of article 122 or, as the case may be
proceedings in the Legislature of a State
within the meaning of Article 212.”
29. The Speaker of the House is, accordingly, a competent
statutory authority to decide the question as to whether the member
of a House has become subject to disqualification under Tenth
Schedule. The question relating to disqualification under Tenth
Schedule has to be decided by the Speaker and none else. The
decision of the Speaker in this regard is final, however, subject to
judicial review on the permissible grounds. In any view of the matter
such an issue cannot be a subject matter for consideration in an
election petition under the Act, 1951. The submission is more in
desperation than in substance and it is rejected accordingly.
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30. In our view, the designated Election Judge did not
commit any error in observing that in order to make out a case under
Section 100(1)(d)(iv), it was necessary for the petitioner to
specifically plead that the election in so far as it concerned the
returned candidate has been materially affected by the non-
compliance of the provisions of the Act, 1951 or the rules made
thereunder. The designated Election Judge held that the entire
electioneering in Tamil Nadu in the 14th Lok Sabha was done by
the two major pre-poll formations and hence, it cannot be stated
that it was not made known to the public that to which alignment, a
particular party and movement belonged and, therefore, there was
no confusion in the mind of electorates. It was noticed that margin
between the returned candidate and the defeated candidate was
1,78,610 and hence it cannot be said that the result of the
returned candidate has been materially affected by the non-
compliance of the Provisions of the Act, 1951. We agree with the
view of the designated Election Judge.
31. In the result, the appeal fails and is dismissed with costs.
Costs quantified at Rs. 25,000/-.
……………………..J
(D.K. Jain)
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……………………..J
(R.M. Lodha)
New Delhi,
March 19, 2009.
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