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2009(4) Supreme 349
SUPREME COURT OF INDIA
(From Madras High Court)
D.K. Jain and R.M. Lodha, JJ.
G.S. Iqbal — Appellant
versus
K.M. Khadar & Ors. — Respondents
Civil Appeal No. 1198 of 2007
Decided on : 19-03-2009
(b) Representation of People Act, 1951 – Section 36 – On the date of the scrutiny of nomination, the candidate must be qualified and must not have incurred disqualification under Articles 84 and 102 of the Constitution – There must not have been non-compliance with any of the provisions of Section 33 or 34 of the Act – Non-compliance with any of the Provisions of Section 33 or 34 having not been pleaded, no ground was made out for rejection of nomination of the returned candidate. (Paras 19 and 21)
(c) Constitution of India,1950– Articles 84 and 102 – Returned candidate meeting the qualification criterion u/Art. 84 – No evidence led suggesting disqualification of the returned candidate u/Art. 102(1)(a) to (d) – No interference warranted. (Para 25)
(d) Constitution of India,1950 – 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 – Nobody else can disqualify a candidate under Tenth Schedule for contesting Lok Sabha election – Disqualification under Tent Schedule cannot be a subject matter for consideration in an election petition. (Para 29)
Facts of the case :
1. The appellant - petitioner is an electorate of No. 7, Vellore Parliamentary Constituency, having electoral No. 555 in the electoral list.
2. 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. 3. 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.
3. The designated Election Judge dismissed the election petition.
Finding of the Court :
The designated Election Judge did not commit any error.
Result : Appeal dismissed with cost.
JUDGMENT
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, 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 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 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 prescri
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