Full Judgment Text
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PETITIONER:
PASHUPATI NATH SINGH
Vs.
RESPONDENT:
HARIHAR PRASAD SINGH
DATE OF JUDGMENT:
22/01/1968
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
HIDAYATULLAH, M.
HEGDE, K.S.
CITATION:
1968 AIR 1064 1968 SCR (2) 812
CITATOR INFO :
R 1969 SC1034 (4,6)
R 1969 SC1111 (24)
ACT:
Representation of the People Act, 1951, ss. 30 to 35, and
36-Candidate not having made or subscribed oath or
affirmation under Art. 173(a) -Whether entitled to do so on
date fixed for scrutiny of nomination papers.-"On the date
fixed for scrutiny"-"meaning of.
Constitution of India Art. 173(a) and third Schedule-When
oath or affirmation to be made or subscribed by candidate.
HEADNOTE:
The appellant challenged the election of the respondent to
the Bihar Legislative Assembly by an election petition on
the ground that his own nomination paper had been improperly
rejected by the Returning Officer. On January 21, 1967 the
date fixed for scrutiny of nomination papers under s. 36 of
the Representation of the People Act, 1951. the Returning
Officer rejected the nomination paper of the appellant on
the ground that he was not qualified to be chosen to fill a
seat in the State Legislature requisite since he had not
made and subscribed the oath or affirmation as enjoined by
clause (a) of Art.173 of the Constitution. The High Court
rejected the appellant’s election petition.
It was contended for the appellant that s. 36(2) that the
petitioner had not made and subscribed an oath or
affirmation according to the form set out in the Third
Schedule of the Constitution, he was entitled to make and
subscribe the oath or affirmation immediately before the
objection was considered by the Returning officer. As soon
as a candidate makes or subscribes the oath or affirmation,
he would become qualified under Art. 173 of the
Constitution, and this qualification would exist "on the
date fixed for the scrutiny" within the meaning of s. 36(2)
because the date of scrutiny of nomination papers-in this
case January 21, 1967-would not have passed away by ,the
time the oath or affirmation is taken or subscribed.
HELD : dismissing the appeal.
The expression "on the date fixed for scrutiny" in s. 36(2)
(a) means "on the whole of the day on which the scrutiny of
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nomination has to take place". In other words, the
qualification must exist from the earliest moment of the day
of scrutiny. On this date the Returning Officer has to
decide the objections and the objections have to be made by
the other candidates after examining the nomination papers
and in the light of s. 36(2) of the Act and other
provisions. On the date of the scrutiny the other
candidates should be in a position to, raise all possible
objections before the scrutiny of a particular nomination
paper starts. [817 F-H]
Paynter v. James, (1866-67) L.R. 2 C.P. 348 and Reg v.
Humphery, 10 Ad. & E. 335; referred to.
The fact that there was no place in form. 2B prescribed
under the Conduct of Election Rules, 1961 where it can be
stated by the candidates that he had taken the requisite
oath or -affirmation does not mean that the oath or
affirmation can be taken and subscribed on the date fixed
for -scrutiny. The nomination ’paper does not provide for
the statement about
813
the oath because the oath or affirmation has to be taken
after a candidate has been nominated. It cannot be said
that a person can be regarded its nominated only when, after
scrutiny of the nomination papers, the Returning Officer
finds him to be validly nominated. The form of oath does
not say "having been validly nominated" but only "having
been nominated". [818 E]
Shiva Shankar Kanodia v. Kapildeo Narain Singh, Election
Appeal No. 4 of 1965; judgment dated September 22, 1965 of
the Patna High Court; disapproved.
The words "having been nominated" in the form of the oath or
affirmation in the third Schedule to the Constitution
clearly show that the oath or affirmation cannot be taken or
made by a candidate before he has been nominated as a
candidate. Further, it is clear that none of the sections
from s. 30 to s. 36 require that this oath should accompany
the ,nomination paper. No reference has been made to,
the form of oath in s. 33 or s. 35, although in s. 33 it is
provided that in certain cases the nomination paper should
be accompanied by a declaration or by a certificate issued
by the Election Commission. [817 B, C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1692 of 1967.
Appeal under S. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated September 26,
1967 of the Patna High Court in Election Petition No. 8 of
1967.
H. R. Gokhale, J. P. Goyal and Sobhag Mal Jain, for the
appellant.
S. V. Gupte, S. N. Prasad and B. P. Singh, for the respon-
dent.
R. K. Garg and S. C. Agarwal, for the intervener.
The Judgment of the Court was delivered by
Sikri, J. This is an appeal under s. 116A of the Represen-
tation of the People Act, 1951-hereinafter referred to as
the Act-from the judgment of the High Court of Judicature.
at Patna dismissing Election Petition ’ No. 8 of 1967 filed
by the appellant Pashupan Nath Singh hereinafter referred to
as the petitioner. In order to appreciate the point arising
before us it is necessary to state the relevant facts.
The petitioner stood as a candidate for election to the
Bihar Legislative Assembly. The election to that Assembly
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from the Dumraon Assembly Constituency was held during the
last general elections as per the following schedule :
"(a) Date of filing nomination papers-13-1-1967 to
20-1-1967.
L3 Sup Cl/68-8
814
(b) Date of scrutiny of’ nomination papers--21-1-1967.
(c) Last date of withdrawal of candidatures-23-1-1967.
(d) Date of poll-17-2-1967.
(e) Date of counting of votes-23-2-1967.
(f) Date of declaration of result of the election
23-2-1.967".
The petitioner filed his nomination paper before the
Returning Officer at Buxar on January 16, 1967. Eight other
candidates, including the, respondent Harihar Prasad Singh,
filed their nomination papers before the Returning Officer
on different dates between January 13, 1967, and January 20,
1967. On January 21, 1967, the nomination papers were taken
up for scrutiny, when the Returning officer rejected the
nomination paper of the petitioner and accepted the
nomination papers of the remaining eight candidates. On
February 17, 1967, the poll was held and the respondent,
Shri Harihar Prasad Singh, secured the largest number of
votes, namely, 14,539, and was accordingly declared elected.
Thereupon the petitioner presented election petition in the
Patna High Court for a declaration that the election of the
respondent is void on the ground that the nomination paper
of the petitioner was improperly rejected by the Returning
Officer.
The High Court held that the nomination of the petitioner
was rightly rejected by the Returning Officer on the; ground
that he was not qualified to be chosen to fill a seat in the
State Legislature since he had not made and subscribed the
requisite oath or affirmation as enjoined by cl. (a) of Art.
173 of the Constitution. either before the scrutiny of
nominations or even subsequently on the date of scrutiny.
The short question which arises in this appeal is whether it
is necessary for a candidate to make and subscribe the
requisite oath or affirmation as enjoined by cl. (a) of Art.
173 of the Constitution before the date fixed for scrutiny
of nomination paper. In other words, is a candidate
entitled to make and subscribe the requisite oath when
objection is taken before the Returning Officer or must he
have made and subscribed the requisite oath or affirmation
before the scrutiny of nomination commenced ? The answer to
this question mainly depends on the interpretation of s.
36(2) of the Act. It will, however, be necessary to refer
to some other sections of the Act in order to fully
appreciate the effect of the words used in that section.
Section 32 of the Act provides for nomination of candidates
for election thus :
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"Any person may be nominated as a candidate
for election to fill a seat if lie is
qualified to be chosen to fill that seat under
the provisions of the Constitution and this
Act or under the provisions of the Government
of Union Territories Act, 1963, as the case
may be.,,
It was suggested by the learned Counsel for the respondent,
Mr. Gupte, that this section means that a candidate must
also be qualified to be chosen on the last date for film,,
nominations. We need not consider this question because we
have come to the conclusion that the petitioner was not
qualified for being chosen to fill the seat on the date
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fixed for scrutiny of nominations within the meaning of s.
36(2)(a).
Section 33 provides for presentation of nomination paper and
certain requirements for a valid nomination. Sub-s. (2),
for instance, provides that in the case of a constituency
where any seat is reserved, the nomination paper must
contain declaration by the candidate specifying the
particular case or tribe of which he is a member and the
area in relation to which that case or tribe is a Scheduled
Caste or. as the case may be, a Scheduled Tribe of the
State. Sub-s. (3) provides that where a candidate is a
person who, having held any office referred to in cl. (f) of
s. 7, has been dismissed and a period of five years has not
elapsed since the dismissal, lie must with the nomination
paper give 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.
Section 35 deals with the notice of nominations and the time
and place for their scrutiny. The Returning Officer has to
inform the person or persons delivering the nomination paper
of the date, time and place fixed for the scrutiny of’
nominations. He is also required to sign a certificate
stating the date on which and the hour at which the
nomination paper has been delivered to him, and also to
cause to be fixed in some conspicuous place in his office a
notice of the nomination containing descriptions similar to
those contained in the nomination paper. both of the
candidate and of the proposer.
Then comes s. 36, relevant portion of which reads follows:
" 36. Scrutiny of nominations.-( I ) On the
date fixed for the scrutiny of nominations
under section 30, the candidates, their
election agents, one proposer of each
candidate, and one other person duly
authorized in writing by each candidate, but
no other person, may attend at such time and
place as the returning officer
816
may appoint; and the returning officer shall
give them all reasonable facilities for
examining the nomination papers of all
candidates which have been delivered within
the time and in the manner laid down in sec-
tion 33.
(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, reject 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
or
(b) that there has been a failure to
comply with
any of the provisions of section 33 or
section 34;
or
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(c) that the signature of the candidate
or the proposer on the nomination paper is not
genuine. . ."
It will be noticed that under s. 36(2) of the Act, one
of the grounds on which a nomination can be rejected is
that on the date fixed for the scrutiny of nominations
the candidate is not qualified for being chosen to fill
the seat under Art. 173 of the Constitution. The
relevant part of Art. 173 provides :
"173. A person shall not be qualified to be
chosen to fill a seat in the Legislature of a
State 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."
The form referred to reads as under
"Form of oath or affirmation to be made by a
candidate for election to the Legislature of a
State :-
" "I, A.B., having been nominated as a
candidate to fill a seat in the Legislative
Assembly (or Legislative
817
Council), do swear in the name of God/solemnly
affirm that I will bear true, faith and
allegiance to the Constitution of India as by
law established and that I will uphold the
sovereignty and integrity of India.........
The words "having been nominated" in this form clearly show
that the oath or affirmation cannot be taken or made by a
candidate before he has been nominated as a candidate. Fur-
ther, it is clear that none of the sections from s. 30 to s.
36 require that this oath should accompany the nomination
paper. No reference has been made, to the form of oath in
s. 33 or s. 35, although in s. 33 it is provided that in
certain cases the nomination paper should be accompanied by
a declaration or by a certificate issued by the Election
Commission. In this case it is common ground that no oath
or affirmation was attached to the nomination paper or was
filed before the date fixed for the scrutiny.
Mr. Gokhale, who appears for the petitioner, contends that
on objection being taken under s. 36(2) that the petitioner
had not made and subscribed an oath or affirmation according
to the form set out above, he was entitled to make and
subscribe the oath or affirmation immediately before the
objection was considered by the Returning Officer. He says
that as soon as a candidate takes the oath or makes and
subscribes the oath or affirmation he would become qualified
within the terms of Art. 173 of the Constitution, and this
qualification would exist "on the date fixed for the
scrutiny" because the date of scrutiny of nomination paper-
in this case January 21, 1967-would not have passed away by
the time; the oath or affirmation is taken or subscribed.
It seems to us that the expression "on the date fixed for
scrutiny" in s. 36 (2) (a) means "on the whole of the day on
which the scrutiny of nomination has to take place". In
other words, the qualification must exist from the earliest
moment of the day of scrutiny. It will be noticed that on
this date the Returning Officer has to decide the objections
and the objections have to be made by the other candidates
after examining the nomination papers and in the light of s.
36(2) of the Act and other provisions. On the date of the
scrutiny the other candidates should be in a position to
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raise all possible objections before the scrutiny of a
particular nomination paper starts. In a particular case,
an objection may be taken to the form of the oath; the form
of the oath may have been modified or the oath may not have
been sworn before the person authorised in this-behalf by
the Election Commission. It is not necessary under Art. 173
that the person authorised by the Election Commission should
be the returning officer.
818
In Paynter v. James(1), Boyill, C.J., quoted, with
approval, the passage from, the judgment of Tindal, C.J., in
Reg v. Humphery(2), in which the following occurs:
" .... we hold it therefore to be unnecessary to refer
to instances of the legal meaning of the word ’upon’ which,
in different cases, may undoubtedly either mean before the
act done to which it relates, or simultaneous with the act
done, or after the act done, according as reason and good
sense require the interpretation, with reference to the
context and the subject-matter of the enactment."
Bovill, C.J., observed that "that is a very clear statement
of the various meanings of the word "on" or "upon"."
In this connection it must also be borne in mind that
law disregards, as far as possible, fractions of the day.
It would lead to great confusion iF it were held that a
candidate would be entitled to qualify for being chosen to
fill a seat till the very end of the date fixed for scrutiny
of nominations. If the learned counsel for the petitioner
is right, the candidate could ask the Returning Officer to
wait till I k55 p.m. on the date fixed for the scrutiny to
enable him to take the oath.
Reference was also made to Form 2B in the Conduct of
Elections Rules, 1961. It was pointed out that in this form
there is no place where it can be stated by the candidate
that he had taken the requisite oath or affirmation. But,
this in our view does not mean that the oath or affirmation
can be taken and subscribed on the date fixed for scrutiny.
It seems to us that the nomination paper does not provide
for the statement about the oath because the oath or
affirmation has to be taken after a candidate has been
nominated.
Our attention was invited to an unreported decision of
the Patna High Court in Shiva Shankar Kanodia v. Kapildeo
Narain Singh(3). That decision proceeded on the basis that
"one can be said to be so. nominated only when, after
scrutiny of the nomination papers, the Returning Officer
finds him to be validly nominated, as provided under
section 36(8) of the Representation of the People Act,
1951." With respect, the High Court proceeded on a wrong
basis. The form of oath does not say "having been validly
nominated" but only "having been nominated."
In the result the appeal fails and is dismissed with costs.
R.K.P.S. Appeal
dismissed.
Class(1866-67)L.R. 2C.P. 348. (2) 10A.
D.&E. 335. (3) Election Appeal No. 4 of 1965: judgment dated
September 22. 1965.
819