New Delhi, Dec. 19: The Supreme Court has decided to examine afresh whether a candidate who had polled the second highest number of votes can be declared elected if the original winner is disqualified.
A bench of Chief Justice Altamas Kabir and Justices S.S. Nijjar and J. Chelameshwar agreed to look into the matter following an appeal by B. Ravi Yadav, a disqualified candidate who had been initially declared elected as member of a Hyderabad ward in 2009.
The MIM candidate was disqualified by a tribunal on the ground that he had three children, one more than the two-child rule under Section 21-B of the Greater Hyderabad Municipal Corporation Act, 1955.
Yadav's counsel Pallav Mongia told the court he was not disputing the law. The issue was whether the BJP's Cherkula Uday Kumar, who polled the second highest number of votes among nine candidates, could be declared elected following the disqualification of the original winner.
Senior counsel Jayant Bhushan, who appeared for a voter, Haji Khan, supported the contention, saying the tribunal and Andhra Pradesh High Court had erred in directing that Kumar should be declared elected.
The high court had last month upheld the November 2011 order the tribunal had passed following a petition by Kumar that sought Yadav's disqualification.
In his appeal, Yadav cited an earlier apex court observation to contend that if there were more than two persons in the fray, and if the elected candidate is subsequently disqualified, the one who had polled more votes than the remaining candidates could not be declared elected.
In that case, the apex court had observed that there was "no specific provision" in the Representation of People Act under which the person who had secured the "next highest number of votes could be declared as elected" if the original winner is disqualified.
The petitioner further said there had been a similar ruling by the Andhra high court, yet the court chose to ignore the two rulings and declared Kumar the successful candidate in "violation of judicial discipline".
Yadav had polled 5,069 votes, according to the results announced on November 26, 2009. Kumar got 4,862 votes.