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THE HONOURABLE THE CHIEF JUSTICE This writ petition has been originally filed seeking a writ of quo warranto to declare that the 1st respondent i.e, Mr.T.T.V.Dinakaran as being disqualified to be a member of the Lok Sabha representing 75 Periyakulam Constituency in Theni District of State of Tamil Nadu, and consequently, for a direction to the Election Commission of India to declare that the above Lok Sabha seat as vacant. During the course of argument when it was pointed out that the writ of quo warranto does not lie and the writ petition is liable to be dismissed on that ground, Dr.Subramanian Swamy has sought to amend the prayer in the writ petition seeking a mandamus to declare the election of the 1st respondent as null and void, and on allowing the said plea of amendment, again arguments were heard.

2. The first respondent is Mr. T.T.V. Dinakaran, who has been elected as a Member of Parliament from Periyakulam Constituency in the Lok Sabha elections during the year 1999. The second respondent is the Election Commission of India and the third respondent is the Secretary General of Lok Sabha. The last date for filing nomination was 24.8.1999 and the election was held on 11.9.1999.

3. The case of the petitioner, who is a renowned politician and statesman Dr. Subramanian Swamy, is that the first respondent was not a Resident of India and had declared his status as Non-Resident Indian staying in Singapore and as such, he was ineligible to contest the election. He has appeared as a party-in-person and made elaborate submissions that the first respondent has got business interests in Singapore, that he is a Director of some companies and holds a Non-Resident Indian status in Singapore and that a Non  Resident Indian cannot contest election, as the prerequisite for being a voter and a contestant is the residence in India and not outside the country. Dr. Subramanian Swamy invokes the provision contained in Article 102 (1) (d) of the Constitution for disqualifying the first respondent from continuing him further as a Member of Lok Sabha. The above Article reads, "A person shall be disqualified for being chosen as and for being a Member of either Houses of Parliament 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."

Dr. Subramanian Swamy has also relied upon the legal propositions laid down by the Supreme Court in HARI PRASAD MULSHANKER TRIVEDI v. V.B. RAJU (1974) (3) S.C.C. 415) and K. VENKATACHALAM v. A. SWAMICKAN (AIR 1999 SC 1723).

4. The first respondent has filed a counter questioning the locus standi of the petitioner on the ground that his election was already contested by one Mr. P. Selvendran, who had contested on behalf of the D.M.K. party, that the same objection was raised to his nomination and that objection was overruled permitting the first respondent to contest the election, that he has won the election and against the declaration of his election, Election Petition No.1 of 2000 has been filed and that the same has been dismissed, that the said dismissal had become final and that this writ petition is not maintainable. On factual side, the allegations are denied stating that he is not a Non-Resident Indian and that he had been residing in India and that what was material was the residence at the time of filing nomination and that even assuming that he was in any way connected with any business in Singapore during the years 1995  96, there is no material to show that he has ever been out of India from 1995 till this date and that his Indian passport has been impounded restricting his movements and that his being a voter raised a presumption that he is a citizen and resident and so long as his name continues in the voter's list, he is deemed to be a citizen and resident and cannot be disqualified on mere assumptions.

6. In his reply argument, Dr. Subramanian Swamy reiterates his arguments that impounding passport is no ground to plead ordinary residence in India and the stress is on the permanent residence in India and not the temporary restrictions because of the impounding of the passport, that the first respondent, having been permanently residing in Singapore, cannot be called as an ordinary resident in India, that the order by the President, the judgment in H.C.P. or Election Petition, cannot have any relevance to this writ petition as this writ petition is filed invoking the extraordinary powers of this Court as the first respondent has played fraud and misrepresentation and that the proposition laid down by the Supreme Court in VENKATACHALAM's case (supra) holds on all fours in this case and that the writ petition is to be allowed in terms prayed for.