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

J U D G E M E N T

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 constituency

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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

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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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