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PETITIONER: VIRJI RAM SUTARIA

       Vs.

RESPONDENT: NATHALAL PREMJI BHANVADIA AND ORS.

DATE OF JUDGMENT: 04/11/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HEGDE, K.S.

CITATION:  1970 AIR  765            1969 SCR  (2) 507  1969 SCC  (1)  77  CITATOR INFO :  F          1990 SC 528  (4)

ACT: Constitution  of  India    Art. 173---Oath to  be  taken  by candidate   for  election to the Legislature--Form  of  oath prescribed  in  Third  Schedule--  Oath  taken  in  Gujarati language--Use    of    expression   ’Rajya    Sabha’     for ’Legislative   Assembly’--Oath  whether  taken   in   proper form--Effect  on   election--Directory or mandatory.

HEADNOTE: The  returned  candidate  ’at an  election  to  the  Gujarat Legislative  Assembly  held in February 1967 had  taken  his oath  as  prescribed by Art.   173 of the  Constitution   in the   Gujarati  version  of  the  relevant  form set out  in the Third Schedule to the Constitution.  In the said version the  term  "Legislative Assembly" was translated  as  "Rajya Sabha". In   an election petition it was urged that the term "Raiya  Sabha" was equivalent not to "Legislative  Assembly" but to "Legislative Council", ’and there  fore the oath  was not taken by the returned candidate in the proper form   and his  election  was liable to be set aside.  The  High  Court having  decided    against the  election  petitioner  appeal against its judgment was filed in this  Court.       HELD:  (i)  The word ’sabha’ means a  gathering  or  a meeting  or an assembly of persons for a  definite  purpose. Giving the word ’sabha’  the said meaning in the word ’Raiya Sabha’  it would not be possible to hold that the  oath  was not  in compliance with the form  prescribed in Art.  173(a) of  the Constitution.  No doubt by common parlance  in  many of the States in Northern India the expression ’Rajya Sabha’ has  come  to mean the Legislative Council of a State  while the  State  Legislative Assembly is known  as  Rajya  Vidhan Sabha.  But in the absence of any authoritative  translation of  the expression "State Legislative Assembly" in  Gujarati the popular meaning of the expression could not give  proper guidance. The State of Gujarat has no Legislative Council of the  State.   The Legislature consists of  one  house  only, namely,   the  State  Legislative.  Assembly.  There   could therefore be no misapprehension either in the person  taking the  oath or in the Returning Officer when he was  accepting

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the nomination paper with the oath in Gujarati form that the candidate   who  afterwards  won  the  election  was   being nominated  as a candidate to fill a seat in the  Legislative Council of the State and not in  the  Legislative  Assembly. [630 D--G]       As the essential requirements of the oath given in the form  in  the Third Schedule were not deviated from  in  the Gujarati  form used in this case it could not be  held  that the oath subscribed in this case was not in compliance  with Art.  173 merely because of the popular meaning of the  word "Rajya Sabha".       (ii) Non,-compliance with the provisions of a  statute or  Constitution  will not necessarily render  a  proceeding invalid  if  by considering its nature, its design  and  the consequences which follow from its non-observance one is not led   to  the  conclusion  that  the  legislature   or   the Constitution-makers   intended  that  there  should  be   no departure from the strict words used, [633 G--H] 628     In  the present case the essential requirement  of  Art. 173 read with Form VII-A was that the person taking the oath or  making  the  affirmation  would  bear  true  faith   and allegiance   to  the  Constitution  and  would  uphold   the sovereignty and integrity of India.  The words which precede this portion are merely descriptive of the person and of his nomination as a candidate.  It is reasonable to think that a mere  misprint in the form of the oath or a mere  inaccuracy in   rendering   the  expression "Legislative  Assembly"  in Gujarati  would  not  be  fatal  to  the  election  of   the candidate, if otherwise valid. [634 A]     Kamaraja  Nadar  v. Kunju Thevar, [1959]   S.C.R.   583, Murarka  Radhey  Shyam  Ram Kumar v.   Roop  Singh  Rathore, [1964]  3  S.C.R.  573; Ch.  Subbarao  v.  Member,  Election Tribunal,  Hyderabad,  [1964] 6 S.C.R. 213; State of U.P. v. Manbodhan  Lal  Srivastava, [1958] S.C.R. 533 and  State  if Punjab  v.  Sat Pal Dang and State of Punjab v.  Dr.  Bolder Prakash & Ors., [1969] 1 S.C.R. 478, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1180 of 1968.     Appeal under s. 116A of the Representation of the People Act, 1951 from the judgment and order dated January 17,  18, 1968 of the Gujarat High Court in Election Petition No. 2 of 1967. Shyamala Pappu and Vineet Kumar, for the appellant. Bishan Narain and D.N. Misra, for the respondent No. 1. The Judgment of the Court was delivered by     Mitter, J. The only question raised in this appeal  from a judgment and order of the High Court of Gujarat dismissing an election petition is, whether the returned candidate  was not  qualified  to  be chosen to fill a seat  of  the  State Legislative Assembly inasmuch as he did not subscribe to  an oath or  affirmation  according to  the form set out for the purpose  in  the  Third  Schedule  to  the  Constitution  as prescribed under Art. 173 thereof. ’The relevant facts may be stated as follows: The notification of the Governor of Gujarat under s.   15(2) of  the  Representation of the  People  Act  of   1951   for the purpose of elections  to the  Gujarat State  Legislative Assembly was issued on January 13, 1967.  Nomination  papers were  filed  by  several  persons  including  the   returned candidate  and the scrutiny thereof was made on January  21, 1967.   The  poll took place on February 18,  1967  and  the

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result  declared on February 27. 1967 showing  the  returned candidate  winning  comfortably by a margin  exceeding  3800 votes  over his nearest rival.  One of the grounds taken  in the  election  petition  was  that  immediately  after   the scrutiny  of the nomination papers, the third respondent  to the  election petition had filed a written objection  before the Returning Officer contending that the returned candidate had not taken oath        629 properly and on the same ground he along with respondents  2 and  4 were not qualified to be chosen and their  nomination papers  should be rejected.   This contention  was  returned down by the Returning Officer and was also negatived by  the learned  Judge who heard the election petition and  in  this appeal  the  unsuccessful petitioner has only  pressed  this ground.     The  relevant  portion of Art. 173 of  the  Constitution reads as follows :--                     "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 be,fore some  person authorised  in               that behalf by the Election Commission an oath               or  affirmation according to the form set  out               for  the  purpose  in  the  Third Schedule;               (b) and(c)             ." The  Third  Schedule  contains  various  forms  of  oath  or affirmation.  From VII-A the relevant form for  the  present purpose is,  as follows:                     "Form of oath or affirmation to be  made               by a candidate for election to the Legislature               of a State :--                     "1,  A.B.,  having been nominated  as  a                             candidate  to  fill a seat in  the  Le gislative               Assembly (or Legislative Council), do swear in               the name of-God  that  I will                              solemnly   affirm   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  returned  candidate  had  filed  three   nomination papers  with  three  different  proposers  on  January   20, 1967.  Each  of  the   three   nomination  papers    clearly mentioned  that  he was a candidate for election to  fill  a seat  in  the  Vidhan  Sabha  for  the  Gujarat  State  i.e. Legislative Assembly of the State.  The nomination paper  of the   returned  candidate  contained  a  form  of  oath   or affirmation  which  was  both  in Gujarati  as  well  as  in English.   The English form followed word for word Form  No. VII  as set out in the Third Schedule, to  the  Constitution and  the Gujarati form purported to set out   the   Gujarati translation of the form of oath or affirmation. The relevant difference  for the purpose of this appeal between  the  two ,forms lay in this that the words-"Legislative Assembly"  in the  form  in English were translated in  Gujarati  form  as "Rajya Sabha" and the appellant’s contention-before-the High Court and before us rested 630 solely  on the use of this word which according  to  learned counsel  went to show that the oath that was taken  was  for the  purposes  of  filling a seat  not  in  the  legislative assembly   of  the  State but in the Legislative Council  of

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the  State.    At  the hearing of the petition  be,fore  the High  Court  the  returned candidate gave  evidence  to  the effect that he had taken the oath not according to the words in  the Gujarati form but ’according to the  translation  of the  words  in the English form rendered  by  the  Returning Officer. The Returning Officer was merely called to  produce some  documents but he was not put on oath nor was he  asked any question to corroborate the testimony  of the   returned candidate.  The High Court did not accept this testimony and we see no reason to come to any different conclusion.     We  must  therefore  proceed  on  the  basis  that   the returned  candidate took the oath according to the words  of the  Gujarati  form.  It was argued before  us  that  ’Rajya Sabha’  means  the Legislative Council of the State *and not the  Legislative Assembly of the State and consequently  the oath taken did not  fulfill  the requirements of Art. 173(a) of  the Constitution.  We were not referred to any  official translation  of  the expression  "Legislative  Assembly"  in Gujarati.   The word "sabha" means a gathering or a  meeting or an assembly of persons for a definite purpose. Giving the word  "sabha"  the  said meaning in  the  expression  ’Rajya Sabha’  it would not be possible to hold that the  oath  was not in compliance with the form prescribed in Art. 173(a) of the  Constitution.  No doubt by common parlance in  many  of the  States in Northern India the expression  ’Rajya  Sabha’ has  come to mean the Legislative Council of a  State  while the  State  Legislative Assembly is generally known as Rajya Vidhan  Sabha.   But  in the absence  of  any  authoritative translation  of the expression "State Legislative  Assembly" in  Gujarati  we  cannot  guide  ourselves  by  the  popular rendering  of  the  expression.  In this  connection  it  is necessary  to mention that in the State of Gujarat there  is no  Legislative  Council  of  the  State.   The  legislature consists  of one house only, namely,  the State  Legislative Assembly.   There  could  therefore  be  no  misapprehension either  in  the person taking the oath or in  the  Returning Officer when he was accepting the nomination paper with  the oath in Gujarati form that the candidate who afterwards  won the  election was being nominated as a candidate to  fill  a seat in the Legislative Council of the State and not in  the Legislative Assembly.     The   High  Court  held  that  there   was   substantial compliance  with  the  requirements of Art.  173(a)  of  the Constitution in the circumstances surrounding the making and the  subscribing of the oath even if the compliance was  not literal.  We  are  in full agreement with  that  view.   The essential requirement of Art. 173(a) of the Constitution for our present purpose is that in order to be        631 qualified to be chosen to fill a seat in the Legislature  of a  State a person (i) must be a citizen of, India  and  (ii) must  make and subscribe before a person duly authorised  an oath  or affirmation according to the form set out  for  the purpose  in  the Third Schedule.  Form  VII-A  contains  the following  essential  requirements:     (1)   The   person  taking  the  oath  or   making   the affirmation must have  been nominated as a candidate to fill a seat in the Legislative Assembly or Legislative Council;     (2)  That he will bear true faith and allegiance to  the Constitution of India as by law established; and     (3) That he will uphold the sovereignty  ,and  integrity of India. The vital requirements, therefore, are (a) the securing of a nomination,  and (b) declaration of beating true  faith  and allegiance  to the Constitution and a promise to uphold  the

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sovereignty  and  integrity  of India.  The  securing  of  a nomination  precedes the making of a declaration.  The  real purpose  of the oath is that the person concerned must  give an  undertaking  to bear true faith and ’allegiance  to  the Constitution  and uphold the  sovereignty  and integrity  of India.  This is brought out by the statement of objects  and reasons to the Bill No. 1 of 1963 seeking to amend Arts. 19, 84  and 173 of the Constitution.  The statement  of  objects and  reasons  notes the recommendation of the  Committee  on National  Integration  and Regionalism and  its  view  "that every candidate for the membership of a State Legislative or Parliament, and every aspirant to, and incumbent of,  public office should pledge himself to uphold the Constitution  and to  preserve the integrity and sovereignty of the Union  and that forms of oath in the Third Schedule to the Constitution should  be  suitably  amended for  the  purpose".  The  Bill proposed  to give effect to the recommendation  by  amending clauses (2), (3) and (4) of Art. 19 as also Arts. 84 and 173 and  the forms of oath in the Third Schedule.  The words  in the form of oath in Form VII-A.      "I will uphold the sovereignty and integrity of  India" were  inserted  by  the  Constitution  Fifteenth   Amendment Act 1963 giving effect to the view of the said committee.     As  the essential requirements of the oath given in  the form  in  the Third Schedule were not deviated from  in  the Gujarati  form  used in this case, we cannot hold  that  the oath subscribed in this case was not in compliance with Art. 173 merely because of the popular meaning of the  expression ’Rajya Sabha’.     The  real  question is, whether the deviation,  if  any, from  the form of oath in English as contained in the  Third Schedule is so 632, vital  as to lead to the conclusion that no proper oath  was taken  by  the  returned candidate.  There  have  been  many instances  where  this  Court has held  that  a  substantial compliance  with  the  statute  or  with  the  rules  framed thereunder is enough even if there be no literal  compliance and in our view there is no reason to adopt a different line of  reasoning in the construction and interpretation of  the Constitution.  In all such cases, one must consider the real purpose    of   the   provision   whether    statutory    or constitutional,  to  find out  whether  notwithstanding  the apparently   mandatory form of the words used any  deviation therefrom was to be struck down.     One of the questions which came up for consideration  in Kamaraja Nadar v. Kunju Thevar(1) was whether the   election petition  ought  to have been rejected  merely  because  the deposit  provided for under s. 117 of the Representation  of the People Act was made in favour of the Election Commission and  not  in  favour  of  the  Secretary  to  the   Election Commission  as  provided for in the said  section.   Turning down   the  argument  advanced  for rejecting  the  election petition it was observed:                      "What   is  of  the  essence   of   the               provision  contained  in s. 117  is  that  the               petitioner  should  furnish security  for  the               costs  of  the petition,  and  should  enclose               along with the petition a’ Government Treasury               receipt showing that a deposit of one thousand               rupees  has  been  made by  him  either  in  a               Government Treasury or in the Reserve Bank  of               India,  is  at the disposal  of  the  Election               Commission   to  be  utilised  by  it  in  the               manner    authorised   by    law     .........

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             "                  . In   Murarka   Radhey  Shyam  Ram  Kumar   v.   Roop   Singh Rathore(2)  one of the points urged against  the  petitioner was that there was non-compliance with the provisions of  s. 81  (3) of the Representation of the People Act because  the copy   of the election petition served on the appellant  was not  a true copy of the original filed before  the  Election Commission.  Rejecting the said contention it was said:                     "   ....  the word "copy" in sub-s.  (3)               of  s.  81 does not mean an  absolutely  exact               copy, but means that the copy shall be so true               that    nobody   can   by   any    possibility               misunderstand it." To  the  similar effect is the judgment in Ch.  Subbarao  v. Member, Election Tribunal, Hyderabad(3).     In  State of U.P.v. Manbodhan Lal Srivastava(4)  one  of the  contentions urged on behalf of the respondent  who  was reduced (1)  [1959] S.C.R. 583.                 (2) [1964] 3  S.C.R. 573. [1964] 6S,C.R,213,                     (4) [1958]S.C.R.533.         633 in rank after departmental enquiry, was that ’the order   of the  Government  was  invalid for  non-compliance  with  the provisions of Art. 320(3)(c) of the Constitution which  read literally made it obligatory for the Government of India  or a Government of a State to consult the Union Public  Service Commission   or  the State Public Service Commission on  all disciplinary  matters affecting a person in service  of  the State.   In turning down the above it was observed  by  this Court:                     " ....  the use of the word shall  m   a               statute,   though   generally  taken   in   ’a               mandatory  sense,  does not  necessarily  mean               that in every case it shall have that  effect,               that  is to say, that unless the words of  the               statute   are  punctiliously   followed,   the               proceeding, or the outcome of the  proceeding,               would be invalid."     In State of Punjab v. Sat Pal Dang and State  of  Punjab v. Dr. Baldev Prakash & Ors.(1) one of the points  canvassed before this Court was, whether the certificate by the Deputy Speaker on a Money Bill was sufficient compliance with  Art. 199(4) of the Constitution which provides that:                     "There shall be endorsed on every  Money               Bill   when   it   is   transmitted   to   the               ,Legislative  Council  under article  198  and               when  it  is  presented to  the  Governor  for               assent under ,article 200, the certificate  of               the Speaker of the Legislative Assembly signed               by him that it is a Money Bill." It  was  contended that the provisions of the  above  clause were  mandatory  and  only the Speaker  of  the  Legislative Assembly  could sign the Money Bill.  It was pointed out  by this  Court that the Speaker was not present when the  Bills were  passed and under Art. 180(2) the Deputy Speaker  could act  as the Speaker when the latter was absent.  This  Court proceeded to examine the several tests to determine when the provisions  of statute  might  be treated as mandatory  ,and when not, and emphasis was laid on one of the  distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was .fatal.      The  above  cases  are sufficient  to  show  that  non- compliance with the provisions of a statute or  Constitution

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will  not  necessarily  render a proceeding  invalid  if  by considering  its  nature, its design  and  the  consequences which  follow from its non-observance one is not led to  the conclusion  that the legislature or  the  Constitutionmakers intended  that there should be no departure from the  strict words used. (1) [1969] 1 S.C.R. 478. 634     In  this case, as we have already noted,  the  essential requirement  of Art. 173 read with Form VII-A was  that  the person taking the oath or making the affirmation would  bear true faith and allegiance to the Constitution and uphold the sovereignty   and  integrity  of  India.   The  words  which precede this  portion  are merely descriptive of the  person and  of his nomination as a candidate.  It is reasonable  to think that a mere misprint in the form of the oath or a mere inaccuracy   in  rendering   the   expression   "Legislative Assembly" in Gujarati would not be fatal to the election  of the candidate, if otherwise valid. In the result, the appeal fails and is dismissed with costs. G.C.                                      Appeal dismissed 635