{"id":112768,"date":"2004-02-09T00:00:00","date_gmt":"2004-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-subramanian-swamy-vs-t-t-v-dinakaran-on-9-february-2004"},"modified":"2016-09-16T05:56:18","modified_gmt":"2016-09-16T00:26:18","slug":"dr-subramanian-swamy-vs-t-t-v-dinakaran-on-9-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-subramanian-swamy-vs-t-t-v-dinakaran-on-9-february-2004","title":{"rendered":"Dr. Subramanian Swamy vs T.T.V. Dinakaran on 9 February, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Dr. Subramanian Swamy vs T.T.V. Dinakaran on 9 February, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDate:  09\/02\/2004.\n\nCoram:\n\nThe Honourable Mr. B. SUBHASHAN REDDY, Chief Justice\n\nand\n\nThe Honourable Mr. Justice F.M. IBRAHIM KALIFULLA\n\nW.P. No.4081 of 2002 and W.P.M.P. No.5732 of 2002\n\nDr. Subramanian Swamy                         Petitioner\n\nVs.\n\n1.     T.T.V. Dinakaran\n        Member of Parliament,\n        Periyakulam, Theni Dist.\n\n2.      The Election Commission of India,\nNirvachan Sadan,\nAshoka Road,\nNEW DELHI 110 001.\n\n3.      Secretary General\n        Lok Sabha Secretariat,\n        NEW DELHI  110 001.                   Respondents\n\nPetition filed under Article 226 of the Constitution of India for the\nissuance of Writ of Declaration for the reasons stated therein.\n\nFor Petitioner         :       Dr. Subramanian Swamy\n                                Party  in  Person\n\nFor 1st Respondent     :       Mr. B. Kumar, Sr. Counsel,\nfor Mr. A. Jinasenan\n\nFor 2nd Respondent      :       Mr. G. Rajagopalan,\nSr. Counsel\nFor 3rd Respondent              Mr. J. Madanagopal Rao,\nS.C.G.S.C.\n\n:O R D E R\n<\/pre>\n
THE HONOURABLE THE CHIEF JUSTICE<\/p>\n
        This  writ petition has been originally filed seeking a writ of
\n       quo  warranto  to  declare   that   the   1st   respondent   i.e,
\n       Mr.T.T.V.Dinakaran  as  being  disqualified to be a member of the
\n       Lok Sabha  representing  75  Periyakulam  Constituency  in  Theni
\n       District of State of Tamil Nadu, and consequently, for
\n       a direction to the Election Commission of India to  declare  that
\n       the above  Lok  Sabha  seat  as  vacant.    During  the course of
\n       argument when it was pointed out that the writ  of  quo  warranto
\n       does  not  lie and the writ petition is liable to be dismissed on
\n       that ground, Dr.Subramanian Swamy has sought to amend the  prayer
\n       in the writ petition seeking a mandamus to declare the
\n       election  of the 1st respondent as null and void, and on allowing
\n       the said plea of amendment, again arguments were heard.\n<\/p>\n
        2.      The first respondent is Mr.  T.T.V.  Dinakaran, who has
\n       been  elected  as  a  Member  of  Parliament   from   Periyakulam
\n       Constituency  in  the  Lok  Sabha elections during the year 1999.
\n       The second respondent is the Election Commission of India and the
\n       third respondent is the Secretary General of Lok Sabha.  The last
\n       date for filing nomination was 24.8.1999  and  the  election  was
\n       held on 11.9.1999.\n<\/p>\n
       3.       The  case  of  the  petitioner,  who  is   a   renowned
\n       politician and  statesman  Dr.    Subramanian  Swamy, is that the
\n       first respondent was not a Resident of India and had declared his
\n       status as Non-Resident Indian staying in Singapore and  as  such,
\n       he was  ineligible to contest the election.  He has appeared as a
\n       party-in-person and made elaborate submissions that the first
\n       respondent  has got business interests in Singapore, that he is a
\n       Director of some companies and holds a Non-Resident Indian status
\n       in Singapore and that a Non    Resident  Indian  cannot  contest
\n       election,  as the prerequisite for being a voter and a contestant
\n       is the residence in India and  not  outside  the  country.    Dr.
\n       Subramanian  Swamy invokes the provision contained in Article 102
\n       (1)  (d)  of  the  Constitution  for  disqualifying   the   first
\n       respondent  from continuing him further as a Member of Lok Sabha.
\n       The above Article reads,<\/p>\n
       “A person shall be disqualified for being chosen as and for
\n       being a Member of either Houses of Parliament if he is not a
\n       citizen of India or has voluntarily acquired the citizenship of a
\n       foreign state or is under any acknowledgement of allegiance or
\n       adherence to a foreign state.”\n<\/p>\n
       He  also  refers  to  Sections 16 and 19 of the Representation of
\n       People Act,  1950  as  also  the  Handbook  for  Chief  Electoral
\n       Officers  and  page  273  of the book ‘How India Votes  Election
\n       Laws, Practice and Procedure (First Edition)’ by V.S.  Rama  Devi
\n       and S.K.   Mendiratta.   Section 16 (1) (a) of the Representation
\n       of People Act deals with disqualification for registration in
\n       electoral rolls and reads,<\/p>\n
       ‘A person shall be disqualified  for  registration  in  electoral
\n       roll if he is not a citizen of India.”\n<\/p>\n
       Section 19 prescribes conditions of registration and one  of  the
\n       said  conditions  being  that  a  person  should  ordinarily be a
\n       resident in a constituency.  Section 20 (1) of the Act says  that
\n       a  person cannot be called an ordinary resident of a place merely
\n       because he owns or is in possession of  a  dwelling  house  in  a
\n       constituency.   Paragraph  5.1 of the Handbook also explains that
\n       the persons, who have gone out of the  country  for  business  or
\n       employment,  should  be treated as having moved out of that place
\n       and  mere  ownership  or  possession  of  a  building  or   other
\n       immoveable property will not bestow on the owner, the residential
\n       qualification.   Page 273 of the book ‘How India Votes  Election
\n       Laws, Practice and Procedure (First Edition)’ also mentions,<\/p>\n
       “It  deserves  to  be  specially  noted  that  only  those Indian
\n       citizens living abroad are eligible to be enrolled as electors in
\n       India who are employed under the Government of India for they are
\n       required to  live  abroad  in  public  interest.    Other  Indian
\n       citizens,  who  are  living abroad on their own volition in their
\n       own private interest are not eligible to be
\n       enrolled  as  electors  in  India as, ‘ordinary residence’ in the
\n       Constituency is a condition  precedent  for  registration  as  an
\n       elector of  such  constituency.    They are, however, entitled to
\n       have their names registered electors  once  they  come  back  and
\n       resume their ordinary residence in the country.”\n<\/p>\n
       Dr.   Subramanian  Swamy  has  also   relied   upon   the   legal
\n       propositions  laid  down  by  the  Supreme  Court  in HARI PRASAD
\n       MULSHANKER TRIVEDI v.  V.B.  RAJU<\/a> (1974) (3) S.C.C.  415) and  K.
\n       VENKATACHALAM v.  A.  SWAMICKAN (AIR<\/a> 1999 SC 1723).\n<\/p>\n
        4.      The first respondent has filed  a  counter  questioning
\n       the  locus  standi  of  the  petitioner  on  the  ground that his
\n       election was already contested by one Mr.  P.    Selvendran,  who
\n       had contested  on  behalf  of  the  D.M.K.   party, that the same
\n       objection was raised to his nomination and that objection was
\n       overruled  permitting  the  first  respondent  to   contest   the
\n       election,   that   he  has  won  the  election  and  against  the
\n       declaration of his election, Election Petition No.1 of  2000  has
\n       been filed and that the same has been dismissed, that the
\n       said  dismissal  had  become final and that this writ petition is
\n       not maintainable.  On factual side, the  allegations  are  denied
\n       stating that he is not a Non-Resident Indian and that he had been
\n       residing in India and that what was material was the residence at
\n       the  time of filing nomination and that even assuming that he was
\n       in any way connected with any business in Singapore
\n       during the years 1995  96, there is no material to show that  he
\n       has  ever been out of India from 1995 till this date and that his
\n       Indian passport has been impounded restricting his movements  and
\n       that  his being a voter raised a presumption that he is a citizen
\n       and resident and so long as his name  continues  in  the  voter’s
\n       list,  he  is  deemed  to be a citizen and resident and cannot be
\n       disqualified on mere assumptions.\n<\/p>\n
        5.      Mr.  B.    Kumar, learned senior counsel, appearing for
\n       the  first  respondent,  reiterates  the  same  and  makes  legal
\n       submissions  that  the  first  respondent  was in Singapore for a
\n       brief spell and came to India in March 1995 and did not stir  out
\n       of India.    He  also  refers  to the finding given by a Division
\n       Bench of this Court in MRS.  ANURADHA v.  THE JOINT
\n       SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF
\n       FINANCE AND ANOTHER (H.C.P.  No.240 of<\/a> 1996, dated 27.08.1996).
\n       He  also  relies upon the judgment of the Constitutional Bench of
\n       the Supreme Court in HARI PRASAD’s case (supra) laying  down  the
\n       proposition  that  the High Court cannot sit as an Election Court
\n       and that only an Election Court can examine with  regard  to  the
\n       qualification of a person whether as a voter or a contestant.  He
\n       has  also  submitted  that the petitioner had also approached the
\n       President of India, who has rejected his contention after duly
\n       consulting the  Election  Commission, i.e.  the second respondent
\n       and that there is absolutely no merit in  the  legal  contentions
\n       apart from the fact that the writ petition is not maintainable on
\n       the ground  of locus standi.  He submits that the ratio laid down
\n       in VENKATACHALAM’s case (supra)  by  the  Supreme  Court  is  not
\n       applicable as the facts are different.   He also relies upon the
\n       ruling of the Supreme Court in P.R.  BELAGALI v.  B.D.
\n       JATTI (AIR<\/a> 1971 S.C.  1348) and HARI SHANKER JAIN v.  SONIA
\n       GANDHI (JT<\/a> 2001 (7) SC 289).\n<\/p>\n
        6.      In his  reply  argument,   Dr.      Subramanian   Swamy
\n       reiterates his arguments that impounding passport is no ground to
\n       plead  ordinary  residence  in  India  and  the  stress is on the
\n       permanent residence in India and not the  temporary  restrictions
\n       because of the impounding of the passport,
\n       that  the  first  respondent, having been permanently residing in
\n       Singapore, cannot be called as an  ordinary  resident  in  India,
\n       that the  order  by  the  President,  the  judgment in H.C.P.  or
\n       Election Petition, cannot have any
\n       relevance  to  this  writ petition as this writ petition is filed
\n       invoking the extraordinary powers of  this  Court  as  the  first
\n       respondent  has  played  fraud and misrepresentation and that the
\n       proposition laid down by the  Supreme  Court  in  VENKATACHALAM’s
\n       case (supra) holds on all fours in this case
\n       and that the writ petition is to be allowed in terms prayed for.\n<\/p>\n
        7.      (i)     In P.R.  BELAGALI v.  B.D.  JATTI<\/a>  (supra),  it
\n       was  held  by  a Three-Judge Bench that Section 100 (d) (iv) does
\n       not entitle the Court in an election petition to  set  aside  any
\n       election  on the ground of non- compliance with the provisions of
\n       the Act of 1950 or any Rules made thereunder with  the  exception
\n       of  Section  16  thereof  and  that  in  an election petition the
\n       correctness of the electoral roll cannot be gone into.    It  was
\n       held  that the entire scheme of the Act of 1950 and the amplitude
\n       of its provisions show that the entries to an electoral roll of a
\n       constituency can  only  be  challenged  in  accordance  with  the
\n       machinery  provided  by  it and not in any other manner or before
\n       any  other  forum  unless  the  question  of  violation  of   the
\n       provisions of  the Constitution is involved.  It was further held
\n       that the question whether the returned candidate was ordinarily a
\n       resident in a Constituency under Section 19 (b)  of  the  Act  of
\n       1950 during the material period and was entitled to be registered
\n       in the electoral roll, could not be the subject matter of enquiry
\n       except in  accordance  with the provisions of the Act, 1950.  The
\n       said proposition was accepted by a 5 Judge Bench of  the  Supreme
\n       Court in HARI PRASAD’s case (supra).\n<\/p>\n
       (ii)     The same was reiterated by another three Judge Bench of
\n       the Supreme Court in SHYAMDEO PD.  SINGH v.  NAWAL KISHORE
\n       YADAV<\/a> (2000 (8)  S.C.C.    46).  It was held in the above case of
\n       Shyamdeo Prasad that  inclusion  of  person  or  persons  in  the
\n       electoral roll by an Authority empowered under law to prepare the
\n       electoral  rolls,  though  they  were  not  qualified  to  be  so
\n       enrolled, could not be made a ground to set aside
\n       the  election  of  a returned candidate under sub-clause (iii) or\n<\/p>\n
       (iv) of clause (d) of sub-Section  (1)  of  Section  100  of  the
\n       Representation  of People Act, 1951 and that a person enrolled in
\n       the electoral list by an Authority empowered by law to prepare an
\n       electoral roll or to include a name therein, is entitled to  cast
\n       a  vote  unless  disqualified  under  sub-sections  (2) to (5) of
\n       Section 62 of the Representation of People  Act  of  1951  and  a
\n       person  enrolled  in  the  electoral roll cannot be excluded from
\n       exercising his right to cast vote on the ground that he  did  not
\n       satisfy  the  eligibility requirement as laid down in Sections 19
\n       or 27(5) of Representation of People Act, 1950.\n<\/p>\n
        (iii)   IN A.  SWAMICKAN v.  K.  VENKATACHALAM (AIR<\/a> 1987
\n       Madras  60),  a question arose as to whether the writ petition is
\n       maintainable to disqualify an elected  member  of  a  Legislative
\n       Assembly without filing an Election Petition.  It was held by the
\n       Division Bench of this Court that ordinarily an Election Petition
\n       is  the  only  recourse  for setting aside the election but in an
\n       extraordinary situation like the one in which there was an
\n       impersonation,  the High Court will be failing in its duty in not
\n       exercising  jurisdiction  if  the  Constitutional  disability  is
\n       brought to its  notice.   In the said case, K.  Venkatachalam was
\n       not a voter but another person with the same  name  Venkatachalam
\n       was  the  voter  and  impersonating the other Venkatachalam, this
\n       Venkatachalam has filed  his  nomination  and  it  was  accepted.
\n       Later on, it was brought out very clearly that the candidate
\n       Venkatachalam  had impersonated the other Venkatachalam by taking
\n       undue  advantage  of  the  similarity  in  name  and   in   those
\n       circumstances,  the constitutional provisions were invoked and he
\n       was disqualified to continue  as  a  Member  of  the  Legislative
\n       Assembly  and the said decision was affirmed by the Supreme Court
\n       in K.  VENKATACHALAM v.  A.  SWAMICKAN<\/a> (supra).  It was  held  by
\n       the Supreme Court that where the appellant
\n       (K.Venkatachalam) was not in  the  electoral  roll  for  Assembly
\n       Constituency  for  General  Election  and he filed his nomination
\n       impersonating himself for another person of the same name in  the
\n       electoral  roll,  he  lacked the basic qualification under clause\n<\/p>\n
       (c) of Article 173 of the Constitution read with
\n       Section  5  of the Act which mandated that a person to be elected
\n       from an Assembly Constituency  has  to  be  an  elector  of  that
\n       Constituency.   It  was  held that bar under Article 329 (b) will
\n       not come into play when the case falls under Articles 191 and 193
\n       and whole of the election process is over, and that  Article  226
\n       of  the  Constitution  is  couched  in  widest possible terms and
\n       unless there is clear bar to jurisdiction of the High Court,  its
\n       powers  under  Article  226  of the Constitution can be exercised
\n       when there is any act which is against any provision  of  law  or
\n       violative  of  Constitutional provisions and when recourse cannot
\n       be had to the provisions of the Act for
\n       the appropriate relief.\n<\/p>\n
        (iv)    The Full Bench of this Court in HAJA SHAREEF K.S.    v.
\n       HIS EXCELLENCY THE GOVERNOR OF TAMIL NADU<\/a> (1984 WLR Supp.\n<\/p>\n
       96)  has got no application here as in that case it was held that
\n       a Member of the Legislative  Assembly,  who  has  been  appointed
\n       Honorary  Consul  of  a  foreign country, incurs disqualification
\n       under Article 191 (1) (d) of the Constitution of India.\n<\/p>\n
        8.  The facts of the present case attract the legal  principles
\n       enunciated by the Supreme Court in BELAGALI’s Case (Supra), which
\n       was approved by a Larger Bench in HARI PRASAD’s Case (Supra), and
\n       again  reiterated  in  the  latest judgment in HARISHANKAR’s Case
\n       (Supra).  The judgments in either K.VENKATACHALAM’s Case  (Supra)
\n       or  HAJA  SHAREEF’s Case (Supra) have got no bearing on the facts
\n       of the present case.\n<\/p>\n
        9.  In view  of  the  discussion  of  the  judicial  precedents
\n       referred  to  supra,  the legal proposition which emerges is that
\n       once a person is shown as voter in the electoral roll it raises a
\n       statutory presumption that he is entitled  to  both  contest  and
\n       vote and the said rights cannot be curtailed by any other
\n       process  otherwise  than  resorting  to   Section   22   of   the
\n       Representation of  the  People Act, 1950.  The undisputed fact is
\n       that as on date, the 1st respondent is an elector  and  his  name
\n       finds place  in  the  electoral  roll.   In the result, this writ
\n       petition is dismissed.    No  costs.    Consequently,   connected
\n       W.P.M.P.  is
\n       also dismissed.\n<\/p>\n
                                        (B.S.R., C.J.) (F.M.I.K., J.)<\/p>\n
                                                09.02..2004.\n<\/p>\n
       Internet:  Yes\/No
\n       bh\/sm
\n       Copy to:-\n<\/p>\n
       1.       The Election Commission of India,
\n       Nirvachan Sadan,
\n       Ashoka Road,
\n       NEW DELHI 110 001.\n<\/p>\n
       2.       Secretary General
\n        Lok Sabha Secretariat,
\n        NEW DELHI  110 001.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Dr. Subramanian Swamy vs T.T.V. Dinakaran on 9 February, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 09\/02\/2004. Coram: The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice and The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA W.P. No.4081 of 2002 and W.P.M.P. No.5732 of 2002 Dr. Subramanian Swamy Petitioner Vs. 1. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-112768","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDr. Subramanian Swamy vs T.T.V. 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