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PETITIONER: J.H. PATEL

       Vs.

RESPONDENT: SUBHAN KHAN

DATE OF JUDGMENT:       24/07/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) ANAND, A.S. (J) MAJMUDAR S.B. (J)

CITATION:  JT 1996 (6)   633        1996 SCALE  (5)434

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T                           W I T H                 CIVIL APPEAL NO.3677 OF 1996 Ahmadi, CJI.      By  an   order  dated  March  20,  1996,  Civil  Appeal No.1795/96 was  allowed and  the impugned  order of the High Court dated January 3, 1996, was set aside. The Civil Appeal No.3677/96 which  was actually cross objections filed by the respondent in  Civil Appeal  No.1795/96 was  dismissed.  The election petition  from  which the present appeals arose was consequently dismissed.  The present  judgment is to provide reasons for the above order.      First, the  facts  in  brief.  Shri  Subhan  Khan,  the respondent in Civil Appeal No.1795/96, (hereinafter referred to  as   the  respondent),   filed  the   election  petition challenging the  election of  Shri J.H. Patel, the appellant in C.A.No.1795/96,  from 158 Channagiri Legislative Assembly Constituency  on   the  ground   that   his   (respondent’s) nomination paper  was improperly  rejected by  the Returning Officer. One  Sri E.  Shekharappa, a  voter  from  the  same constituency,  filed   a  nomination   paper  proposing  the respondent’s name on October 29, 1994. The Returning Officer issued a  notice to the respondent to make and subscribe the oath or  affirmation before  the date appointed for scrutiny of the  nomination paper,  that is,  November 3,  1994.  The preceding two  days i.e.,  November 1,  1994 &  November  2, 1994, were  public holidays.  The  respondent  came  to  the office of  the Returning Officer on November 3, 1994 at 9.00 a.m. and  took oath under Article 173 of the Constitution of India at  10.55 a.m. before the Tehsildar, Channagiri Taluk. The  scrutiny  was  to  commence  at  11.00  a.m.  when  the respondent produced  the certificate  of having  taken oath. The  Returning   Officer  rejected  the  nomination  of  the respondent.Elections were  held on  November 26, 1994 and on December 9,  1994, the  appellant was  declared elected. The

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respondent challenged  the election  as void  on the  ground that the  rejection of  his  nomination  was  improper.  The election petition  was contested  by the appellant. The High Court held that the oath taken on November 3, 1994, at 10.55 a.m. was  not sufficient  but that the oath taken on October 27, 1994  at Davanagere Constituency, as required by Article 173 of  the Constitution  of India  as evidenced by Ex. P.1, although not  brought to the notice of the Returning Officer at the  time of  scrutiny, would  qualify him to contest the election from  the concerned  constituency. The  High  court further held  that the  respondent was entitled to raise any fresh ground or produce any fresh material to prove the fact that his  nomination paper  was improperly rejected and that the fact  that the respondent did not bring this fact to the notice of  the Returning Officer would not disentitle him to rely on  the fact  before the  High Court.  The  High  Court accordingly concluded  that the  rejection of the nomination paper of the respondent was improper and hence set aside the election.      The impugned  judgment is challenged on the ground that the decision  of the  High Court in accepting fresh material produced for  the first  time before  it was   based  on  an erroneous understanding  of the  judgments of  this Court in N.T. Veluswami  Thevar V.G. Raja Nainar and Others (AIR 1959 SC 422)  and Birad Mai Singhvi V. Anand Purohit (AIR 1988 SC 1796); that  the reasoning  of the  High Court  if  accepted would lead  to absurd  results as mischievous elements could then file  nomination at  one place and take oath at another and later  challenge the  rejection of  the nomination; that the Returning  Officer was right in rejecting the nomination paper on  the basis  of material  placed before him and that the plea  of the  respondent in  the face  of his unfair and improper conduct  would amount  to misuse  of the  electoral process.      In the  cross-objections filed  by the  respondent,  he reiterates that  the oath taken at 10.55 a.m. on November 3, 1994 was valid and that the finding of the High Court to the effect that  he  had  not  brought  to  the  notice  of  the Returning Officer  about the  affirmation at  Davanagere  is incorrect.      From the above narration, one question of fact comes up for  consideration,   namely,  whether  the  respondent  had informed the  Returning Officer  that he  had subscribed  an oath or affirmation in the prescribed form in the Davanagere constituency on  October 27, 1994. The questions of law that arise for  consideration are : (a) whether the oath taken at 10.55. a.m.  on November  3,  1994  would  suffice  for  the scrutiny held  at 11.00  a.m. on  that very day; (b) whether the oath  taken on  October 27,  1994 at Davanagere could be taken into  consideration for scrutiny of the nomination for the concerned  constituency; and  (c) whether  the  election could be  set aside on the basis of oath of October 27, 1994 even if  the question  of fact  raised by  the respondent is decided in the negative.      So far  as the  fact in  issue is concerned, we have to begin  from  the  initial  flaw  in  the  pleadings  of  the respondent. As pointed out by the High Court, the respondent pleaded that  he had  brought to the notice of the Returning Officer that  he had  taken oath  at Davanagere  but did not plead that  he had  shown the certificate Ex. P.1 evidencing the taking of the oath. In fact, the best way to satisfy the Returning  Officer   about  the  oath  was  to  present  the certificate. His  witnesses say  that  the  certificate  was shown. The  Assistant Returning  Officer and  the  Returning Officer  of   the  concerned   constituency  depose  to  the

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contrary. The order of the Returning Officer Ex.P.4 does not make any  mention of any such certificate or any information being given  by the  respondent about  the previous oath. No allegation of  bias has  been  made  against  the  Returning Officer. We  are of  the opinion that evaluation of evidence on this  aspect by  the High  Court does  not call  for  any interference  and   we  agree  with  the  finding  that  the respondent had  not informed  the Returning  Officer that he had already  taken oath  as required  by Article  173 of the Constitution on October 27, 1994 at Davanagere.      There is  hardly any  scope for  controversy about  the validity of the oath taken at 10.55 a.m. on November 3, 1994 which was  the date  of scrutiny.  This Court in its earlier judgments in  the case  of Pashupati  Nath  Singh v. Harihar Prasad Singh,  1968(2) SCR  812 and  in the  case  of  Khaje Khanavar  Khaderkhan   Hussain   Khan      and   Others   v. Siddavanballi Nijalingappa  & Another.  1969(3) SCR  524 has categorically held  that the oath required by Article 173 of the Constitution  of India has to be taken prior to the date of scrutiny of the nomination paper and not on the same day, minutes before  the scrutiny.  This Court  took note  of the provisions  of   Section  36(2)  of  the  Representation  of People’s Act, 1951 and made the following observation :      "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   candidate.      Should be  in a  position to  raise      all possible  objections before the      scrutiny of a particular nomination      paper starts." We subscribe to the same view.      However, before  we proceed  to the next point, we must refer to the decision of this Court in the case of Ram Swarup v.Hari  Ram and  Others (1983) 3 SCC 373 wherein this Court held that it was enough if the candidate could satisfy that on  the date  of  scrutiny  he  was  not  qualified  or disqualified for being chosen to fill the seat under Article 191 of  the Constitution.  The High  Court did not apply the ratio of  this decision  to the facts of the present case as it turned on the language of Article 191 and not Article 173 with which  we are  presently concerned. That is perhaps the reason why  the Court  did not  refer to  the two  decisions relied on  while deciding  the case  of Ram Swarup. The two- Judge Bench in Ram Swarup’s case could not have taken a view different from the view taken by the three-Judge  Benches in the earlier  two cases.  We are, therefore, of the view that on this point the High Court’s decision cannot be faulted.      There was not much controversy at the Bar that the oath to be  taken under Article 173 of the  Constitution of India once taken  for any  constituency would  be  valid  for  the election to the concerned assembly. The earlier judgments of

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this Court  on this point, as pointed out by the High Court, are also  to the same effect. The central controversy in the case is  the effect  of non-disclosure of the fact of having subscribed an oath on an earlier date prior to scrutiny. The earlier oath, if any, has to be subjected to scrutiny on the date and  place fixed for the purpose. The subject matter of scrutiny  is   provided  for   in  Section   36(2)  of   the Representation of the People Act, 1951:      "(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  (20  of      1963); or      (b) that  there has  been a  failure  to      comply   with any  of the  provisions of      section 33 or Section 34; or      (c) that  the signature of the candidate      or the  proposer on the nomination paper      is not genuine."      It can be seen that the eligibility of the candidate as per the  requirements of  Article 173 of the Constitution is squarely a  matter for  scrutiny. The oath subscribed by the candidate would  itself be  subject to  scrutiny.  The  mere information that  an oath has been subscribed could not have fulfilled the  requirement of scrutiny of scrutiny. Even Ex. P.1 would  fall short  of the  requirement. Ex.P.1 is quoted below for facility of its examination:                                                      Ex.P.1                                                ANNEXURE - B      (Certificate for  receipt of  form of  Oath)    (To  be handed over to the candidate by the authorised person)      Certified that  Shri Subhan Khan (name) a candidate for election   to   the   41-Davanagere   Legislative   Assembly Constituency has made and subscribed the oath/affirmation as required by  the Constitution  of India,  before  me  at  my office at 12-45 (hours) on 27-10-1994 (date). Date: 27-10-1994                                                          Sd/                                                    7-10-1994                                            Electoral Officer                      No.41, Davanagere Assembly Constituency ____________________________________________________________      I, the  Petitioner, verify  that the  contents of  this document Annexure-B are true to the best of my knowledge.                                                       Sd/                                               Suhhan Khan                                                Petitioner The certificate  does not reproduce the oath subscribed. The candidate contesting the election could not, therefore, have

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scrutinized the  validity of  the oath  and could  not  have raised any objection to it.      It was  contended on  behalf of  the respondent that he had brought  to the  notice of the Returning Officer that he had taken  oath in the Davanagere constituency and had shown Ex.P.1 to  him. The  High Court  has on an evaluation of the evidence of  PWs 1  to 4, 8 and 9 on the one hand, and PWs 5 and 6 on the other, come to the conclusion that this part of the version  is unacceptable.  The High  Court notices  that there was no averment in the petition that Ex.P.1 was shown, nor is  there any  mention about  it  in  the  order  Ex.P.4 rejecting  the   nomination.  We,   too,     have  carefully scrutinized the  evidence and  see no  reason to depart from the conclusion  reached by  the High  Court. Therefore, this finding of  the High  Court assailed in cross-appeal must be upheld.      In this  situation, could  the respondent be allowed to prove the  factum and  validity of  the oath taken by him at Davanagere on  October 27,  1994 by an altogether fresh plea raised before  the High  Court? Relying  on two decisions of this Court,  viz., (i)  N.T. Veluswami Thevar and (ii) Birad Mal Singhvi (supra), the High Court allowed fresh plea to be raised  and   concluded  that  the  nomination  was  wrongly rejected which  resulted in  the election  of the  appellant being vitiated.  The question  is whether the High Court was right in doing so.      In the  first mentioned  case, the  facts were that the election of  the successful  candidate was challenged by one of the  voters of  the constituency  for the reason that the nomination paper  of the  4th respondent  had  been  wrongly rejected by  the Returning Officer on the ground that he was holding an  office of profit, in that, he was the Headmaster of a  Government-aided school at the relevant point of time. The contention  was that  the ground on which the nomination paper was  rejected was  improper as  the 4th respondent had ceased to  be a Headmaster at the time of his nomination and further that he was employed in a private institution. The appellant, the  successful candidate,  who  was  the  second respondent in  the petition,  contended  that  even  if  the ground on  which the  nomination was  rejected was improper, the  decision  of  the  Returning  Officer  could  still  be supported as the 4th respondent was interested in Government contracts and  had agreed  to serve  as a  teacher under the District Board.  The question  which arose for consideration was  whether   in  an   election  petition  challenging  the correctness of  the rejection  of a  nomination paper  under Section 100(1)(c)  of the  Representation of the People Act, 1951, it  was open  to  the  parties  to  raise  grounds  of disqualification other  than those  put forward  before  the Returning Officer. This Court held that an election petition is in  the nature  of original proceedings and not appellate proceedings against  the order  of the Returning Officer and hence the jurisdiction need not be confined to one exercised by an appellate authority. ’ The Court, therefore, held that it was  open to  the successful  candidate  to  support  the decision of  the Returning  Officer   on a  ground different from the one on which the nomination came to be rejected.      In the  second mentioned  case, the  appellant’s, i.e., the successful  candidate’s, election  was challenged by the respondent, an elector, on the ground that the result of the election was  materially affected  by the improper rejection of the  nomination papers  of three  candidates, Umrao  Ben, Hukmichand and  Suraj Prakash  Joshi. It  was contended that Smt. Umrao Ben was an elector in Sardarpura Constituency and the Returning  Officer wrongly rejected her nomination paper

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without affording  her an  opportunity to  produce a copy of the electoral  roll; Hukmichand and Suraj Prakash Joshi were both more  than 25  years  of  age  on  the  date  of  their nomination and  yet the Returning Officer had rejected their nomination papers  holding them to be below 25 years of age. The successful candidate contended that Umrao Ben had failed to file  a certified  copy of  the  relevant  entry  in  the electoral roll  of Sardarpura  Constituency along  with  her nomination and  had further  failed to  produce the same for scrutiny and  therefore, the Returning Officer was justified in rejecting her nomination paper. As regards the other two, Hukmichand  and  Suraj  Prakash  Joshi,  he  contended  that neither of  them was present before the Returning Officer at the time  of scrutiny and since the entries contained in the electoral roll  indicated that  they were  below 25 years of age, the Returning Officer rightly rejected their nomination papers. The High Court held that the nomination of the first mentioned candidate  was rightly  rejected as she had failed to comply  with the  statutory requirement, but in regard to the other  two,it held  that the  rejection was  improper as both the candidates were above the age of 25 years. The High Court set  aside the  election of  the successful candidate. When the  matter was  heard in  appeal by  this  Court,  the rejection of  Umrao Ben’s  nomination was upheld. Insofar as the nomination  papers of  the  other  two  candidates  were concerned, this  Court, on  an examination  of the  material placed on  record, came  to the  conclusion  that  the  High Court’s approach  in evaluating  the evidence concerning the dates of birth was wholly wrong and hence it had committed a serious error  in accepting  that evidence  and holding  the appellant’s election  to be void. It would thus be seen that even on  the fresh  material before  the High Court, oral as well as  documentary, the  decision of the Returning Officer could not  be assailed. On the question whether the decision of the  Returning Officer can be assailed when the candidate or his  agent did not remain present at the time of scrutiny and more particularly when his decision on the material then available is  found to  be proper this Court held that since the enquiry  at the stage of scrutiny is of a summary nature and since the proceedings in the High Court are original and not appellate, it is open to place fresh material before the High Court  to show  that the  rejection of  the  nomination paper was  erroneous. The  limited purpose  for placing this decision was  to show  that the  decision of  the  Returning Officer could  be challenged  on grounds  other than the one accepted by him, by adducing fresh evidence.      We may mention that in Hussain Khan’s case (supra), the election of  the first respondent from Shiggaon constituency was  challenged   on  the   ground  that  he  had  made  the affirmation before  the Returning  Officer of  the  Shiggaon constituency on  the date  of scrutiny and not prior thereto as  required  by  the  decision  in  Pashupati  Nath’s  case (supra). The first respondent sought to support the decision of the  Returning Officer  by pointing out that he had filed his nomination at two other places, Bagalkot and Hospet, and had validly  made affirmations  at those places prior to the date of  scrutiny i.e.,  January 21,  1967. This attempt was questioned on  two grounds,  namely (i)  that this was a new case being  set up on behalf of the first respondent for the first time  and (ii)  that the  affirmation in  Bagalkot and Hospet  could  not  ensure  to  the  benefit  of  the  first respondent for  holding him  qualified to stand for election from Shiggaon  constituency. On  the first point, this Court held that  since the challenge was based on Pashupati Nath’s case  which  itself  was  a  new  ground  permitted  to  the

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appellants, there  was no  justification for  debarring  the first respondent  from putting  forward the alternative case on the  basis of  the  affirmations  made  at  Bagalkot  and Hospet. On  the second  point, the  court  referred  to  the evidence and  came to  the conclusion  that the affirmations made at  the said  two places  could be  used to support the decision  of   the  Returning   Officer  in  regard  to  the acceptance of  the nomination paper of the first respondent. It  will,  thus,  be  seen  that  in  this  case  also,  the successful candidate  was allowed  to defend the decision of the Returning  Officer on  a ground other than the one which weighed with the Returning Officer.      From the case law discussed above, it seems clear to us that an  election petition,  being original  proceedings and not appellate  proceedings, the  High  Court’s  jurisdiction cannot be  confined to  the grounds  on which  the Returning Officer rejected  the nomination.  We agree  with  the  High Court that  it was  not precluded from considering any other ground or  fresh material  bearing on  the question  of  the rejection of  the nomination  paper. It is pertinent to note that in  Veluswami’s case  as well as in Hussain’s case, the successful  candidate   sought  to   support  the  Returning Officer’s decision  of rejection  of the nomination paper on other grounds  when it was realised that the ground on which the rejection  was based  was unsustainable; in other words, the fresh  grounds were  set up by way of a shield and not a sword. However,  in Birad  Mal’s case  the fresh  ground was invoked to unsettle the election of the successful candidate but the  attempt did  not succeed.  In the present case, the situation is  just the  reverse, in that, it has resulted in upsetting the election of the successful candidate.      Mr. Soli  J. Sorabjee,  the learned  Senior Counsel for the appellant, contended that even if it is assumed that the candidate whose  nomination is  rejected can be permitted to question the  correctness of the rejection on a ground other than the  one on  which the rejection was founded, the Court should be  extremely circumspect  about the  same because of the possibility of mischief that can be played to defeat the election if the desired result is not achieved. He contended that as  an election strategy nomination papers can be filed in the  name of  a dummy candidate at two or more places and the oath  or affirmation  as required  by Article 173 can be subscribed at  one place  and  not  at  other  places,  thus permitting the  nominations to  be rejected. If at the other places the  candidate of  choice wins,  the dummy  candidate would keep  quiet but  if the  rival succeeds,  his election would be  challenged through  the dummy candidate by raising the plea  that he had taken oath at another constituency and therefore his  nomination was  wrongly   rejected. If such a plea is  allowed to be raised even though he had not brought this fact  to the  notice  of  the  Returning  Officer,  the successful candidate who won the election after considerable effort and expense and even personal discomfiture would find all that  wasted for no fault of his own. In fact, the wrong doer, that  is the  person who  deliberately suppressed  the information, would  succeed. He,  therefore, submitted  that the court  should permit a new ground to be raised only as a defence as  in the  cases  of  Veluswami  and  Hussain  Khan (supra). He lastly submitted that even if the court does not restrict the  scope of  its jurisdiction  in this behalf, it should permit  it sparingly, keeping in view the possibility of mischief.  He urged  that in  such cases the Court should test the  bona fides  of the  candidate who  challenges  the election of the successful candidate and ascertain if he was put up as a dummy to be used, if need be.

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    Mr.  Raju   Ramachandran,  learned   counsel  for   the respondent, submitted  that election  law being  a technical law, there  was no  room for  equity. He  submitted that the application of  Pashupati Nath’s  case should be confined to its own  facts and Hussain Khan’s case does not lay down any law since it merely follows the earlier decision without any discussion  whatsoever.   He  lastly   contended  that   the respondent had  gone to  Bombay on  October 29,  1994 and as soon as  his father  who received the notice informed him of the same,  he returned  on October 31, 1994 and took oath at the earliest  opportunity on November 3, 1994 since November 1,  1994   and  November  2,  1994  were  admittedly  public holidays. He,  therefore, submitted  that there was no delay on the part of the respondent.      Now let  us carefully  examine the  facts of this case. The calendar of events for the General Elections to the 10th Karnataka Legislative  Assembly was published on October 24, 1994. According  to the  said calendar  the  last  date  for filing nomination  papers was fixed as October 31, 1994, and the date  for scrutiny  of  the  nominations  was  fixed  as November 3,  1994. According to the respondent, he filed his nomination  paper  for  contesting  the  election  from  41, Davanagere Legislative  Assembly Constituency on October 27, 1994 and on the same day he took oath as required by Article 173 of  the Constitution of India. Two days later on October 29, 1994, the respondent’s name was proposed for candidature from 158, Channagiri Legislative Assembly Constituency by an elector. Since  the respondent had not subscribed an oath or affirmation as required by Article 173,the Returning Officer gave notice  on the  same day  reminding him to do so before the date of scrutiny. Indisputably, the respondent took oath before the  Assistant Returning  Officer at  10.55  a.m.  on November 3,  1994, the date fixed for scrutiny of nomination papers. In  view of  this court’s ruling in Pashupati Nath’s case, the  oath taken  minutes before  the scrutiny  was  to commence was of no avail to the respondent. The respondent’s contention that  he had  informed the Returning Officer that he had  taken oath  on October  27, 1994  when he  filed his nomination for  the Davanagere constituency (two days before his  proposer   filed  the  nomination  for  the  Channagiri constituency) and  that  he  had  produced  the  certificate Ex.P.1 in  that behalf  before the Returning Officer has not been accepted  as proved  by the  High  Court  and  we  have subscribed to that view.      Since we  have already  dealt with  the case law in the earlier part  of  this  judgment,  we  do  not  consider  it necessary to  restate  the  same  except  to  say  that  the potential for mischief as pointed out by Mr.Sorabjee is real and not  imaginary. The  Court must, therefore, hear in mind this fact while deciding whether or not to entertain a fresh plea which  was not put forward before the Returning Officer at the  time of  scrutiny of  the nomination  paper and  the rejection thereof.  The   evidence on  record in the present case shows  that both  the respondent  and his  father  were experienced  persons   since  they  had  contested  assembly elections on  more occasions  than one.  The respondent  had personally filed  the nomination  papers for  the Davanagere constituency on  October 27, 1994 and had also subscribed to the oath  under Article  173 of the Constitution. Of course, he withdrew  his candidature  later but  does  not  disclose whether  he   withdrew  before   the  date  of  scrutiny  or thereafter.  He   did  not   file  his  nomination  for  the Channagiri constituency.  According to  him, he had left for Bombay by the afternoon of October 29, 1994 which shows that he had  no intention  to contest  from that  constituency. A

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voter from  the Channagiri  constituency known  to  him  had proposed his  name  and  filed  the  nomination  papers  for election from that constituency on October 29, 1994. He must have informed  the respondent  or his father about the same, even if  we assume  the respondent was not aware of the same before the  papers were  filed. The Returning Officer sent a reminder to  the respondent  on that very day, i.e., October 29, 1994,  informing him  that he had failed to subscribe an oath or  affirmation in  respect of  his nomination  for the said constituency  and should  do  so  before  the  date  of scrutiny. This  letter was admittedly received by the father of the respondent who must have informed him about the same, If  the  father  of  the  respondent  had  informed  him  on telephone, he could have told his father that he had already subscribed  an  oath  on  October  27,  1994  at  Davanagere constituency and  could have  instructed him  to produce the certificate in  that behalf before the Returning Officer. He claims that  he returned from Bombay on October 31, 1994 and as the 1st and 2nd of November 1994 were public holidays, he could take  the oath earliest on November 3, 1994 as soon as the office  of the  Returning Officer opened for the day. As stated earlier  that oath  is of  no avail  Now, as found on facts he  did not  inform the  Returning Officer that he had subscribed an  oath on  October 27,  1994 nor did he produce Ex. P,1 before the Returning Officer. That is the finding of fact recorded by the High Court to which we have subscribed. There was  no reason for the Returning Officer not to accept the certificate  Ex.P.1 if  it was  tendered to  him when he himself had written to the respondent on October 29, 1994 to complete that requirement. If that be so, it becomes obvious that he deliberately allowed the rejection of his nomination paper because  he  knew  fully  well  that  if  he  did  not subscribe the  oath before  the date  of actual scrutiny his nomination would be rejected. He was not a serious contender for the  seat of  the Channagiri  constituency otherwise  he would himself  have filed the nomination papers as he did in the case  of  Davanagere  constituency.  It  is,  therefore, obvious  that   the  voter  had  been  responsible  for  his nomination in  the Channagiri constituency. From these facts lt emerges  that he  did not inform the Returning Officer of his having  taken an  oath before  the Returning  Officer of Davanagere constituency  on October  27,  1994  nor  did  he produce Ex.  P.1 before  the Returning Officer of Channagiri constituency. He  did  not  seek  time  for  its  production either. This  backdrop  is  sufficient  to  create  a  doubt regarding the  bona fides  of the  respondent. It leaves one with the  impression that  the rejection  of the  nomination paper was  a planned action. In any case, the respondent was himself to  blame for the rejection of his nomination papers relating to  the Channagiri  constituency. Should  then  his omission to  produce the  material  evidence  regarding  his having taken  oath at the Davanagere constituency on October 27, 1994,  before the Channagiri Returning Officer result in unseating the appellant, the successful candidate? It is not merely a question of equity but a question of principle that a person  who deliberately  and designedly fails to disclose information  within  his  special  knowledge  and  fails  to produce  material   in   that   behalf   thereby   virtually engineering  the  rejection  of  his  nomination  cannot  be permitted to  raise a  fresh ground  which  would  adversely affect the  opposite party.  A party  which does not come to court with  clean hands  cannot seek  such an indulgence. In the circumstances of this case, a serious doubt arises as to the bona  fides of the respondent in omitting to produce the material evidence  before the  Returning  Officer.  We  feel

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reasonably  sure   that  the   respondent  had  planned  the rejection of  his nomination.  We  are,  therefore,  of  the opinion that  the High  Court was wrong in setting aside the election of the appellant on that ground.      Secondly, the  mere production  of the  certificate Ex. P.1 on  the record of the present proceedings cannot satisfy the requirement  of Article  173 of  the Constitution.  That certificate merely  states that  he   had taken  an oath  as required by Article 173 but what is important is the text of that document i.e., whether it was in the prescribed form or not. The  Returning Officer  at  Channagiri  would  have  to satisfy himself that the oath taken at Davanagere was in the form prescribed  under Article 173 of the Constitution and a mere certificate  to the effect that he had taken oath would not suffice. We are, therefore, of the opinion that even the production of  Ex.P.1 would  not  have  been  sufficient  to invalidate the election of the appellant.      These are  our reasons in support of the order which we made on  March 20,  1996. As  mentioned in  the said  order, there shall be no order as to costs.