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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 : 815               "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