Disqualification cannot be ordered when there is no conviction, as per the statutory provisions of the Representation of the People Act, 1951, and the decision of the Hon'ble Supreme Court in Public Interest Foundation and others vs. Union of India.

S. MANIKUMAR, J.

(Prayer: The Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Mandamus, directing the respondents 1 to 9 to take action against the respondents 10 and 11 for violation of model code of conduct, to disqualify them from the contesting polls, consider and pass orders on the basis of petitioner's representation dated 05.04.2019.)

1. Alleging that Ms.Kanimozhi, Women's Wing Secretary, Dravida Munnetra Kazhagam, DMK Candidate, Tuticorin Constituency, 10th respondent and Mr. D.M.Kathir Anand, S/o. Durai Murugan, Vellore Constituency, DMK Candidate, Vellore, 11th respondent are indulging in corrupt practices and that a sum of Rs.12 Crores, has been seized from one Mr.Poonsolai Srinivasan, Rs.19 Crores from Mr.Damodaran and Rs.5 Crores from Mr.Afsal Ali and totally Rs.36 Crores and all the above said persons are relatives and assistants of Durai Murugan, M.L.A., Ex.Minister and contending that despite representations have been made to the Chief Election Commissioner, Union of India, New Delhi - 1st respondent, seeking for disqualification of respondents 10 and 11, no action has been taken and therefore, the petitioner has contended that left with no other opportunity, he has filed the instant Public Interest Litigation for a Writ of Mandamus, directing the respondents 1 to 9 to take action against respondents 10 and 11 for violation of model code of conduct, to disqualify by them from contesting polls, by considering the petitioner's representation dated 05.04.2019.

2. On the above averments, Mr.A.K.Sriram, learned counsel for the petitioner, made submissions and insisted for consideration of petitioner's representation, dated 05.04.2019, by the Chief Election Commissioner, New Delhi - 1st respondent.

3. Responding to the above, Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, submitted that prayer sought for, should not be granted, for the reason that FIRs have been registered, against respondents 10 and 11 respectively. Citing Sections 8 and 8-A of the Representation of the People Act, 1951, he submitted that mere registration of FIR does not attract disqualification.

4. Learned counsel for the respondent submitted that considering a similar prayer for disqualification of the contestants against whom, charge sheets were filed for heinous and grievous offences, the Hon'ble Supreme Court in Public Interest Foundation and others vs. Union of India, reported in 2019 (3) SCC 224, after considering the statutory provision and law, at Paragraph 25 held as follows :

“thus the prescription as regards disqualification is complete is in view of the language employed in Section 7(b) read with Sections 8 to 10-A of the Act. It is clear as noon day and there is no ambiguity. The legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.” It is further held that the legislature has very clearly enumerated the grounds for disqualification and the language of the said provision leaves no room for any new ground to be added or introduced.

5. Insofar as Mr.Kathir Anand, 11th respondent is concerned, on the complaint of one M.Siluppan, the Personnel Assistant, Accounts, Government Gazetted Official to the Collector of Vellore District, Collectorate, Vellore, a case in F.I.R.No.205 of 2019 has been registered on 10.04.2019 under Section 125A(i), 171(E) and 171(B) IPC on the file of the Katpadi Police Station.

6. As regards 10th respondent is concerned, on the complaint of the Flying Squad (FST-3) of Tiruchengode Constituency, the police has registered a case in Crime No.107/2019 under Section 171(H) r/w 171(E) and 143 IPC dated 28.03.2019 against DMK M.L.A M/s.Anitha Radhakrishnan and DMK M.P. Mrs.Kanimozhi and others, on the file of Tiruchengode Police Station.

7. Therefore, Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India sub