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PETITIONER: SHEIKH ABDUL REHMAN

       Vs.

RESPONDENT: JAGAT RAM ARYAN

DATE OF JUDGMENT: 11/02/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1969 AIR 1111            1969 SCR  (3) 597  1969 SCC  (1) 667  CITATOR INFO :  RF         1990 SC 895  (2,3)

ACT: Jammu  and Kashmir Constitution, 1557, s. 51(a)-Signed  oath form filed before authorised officer-No oath or  affirmation made  before the officer nor oath form signed before  him-If section complied with.

HEADNOTE: Section 51(a) of the Jammu and Kashmir Constitution provides that a persons shall not be qualified to be chosen to,  fill a  ’seat  in  the  State Legislature  unless  he  makes  and subscribes  an  oath or affirmation in the  prescribed  form before the person authorised in that behalf.  The Election Commission notified the Returning Officer and the  Assistant Returning Officer as the authorised officers. Where  a  candidate did not sign the oath  form  before  the Assistant Returning Officer, nor make oath or affirmation in his  presence,  but  presented to  the  Assistant  Returning Officer the candidate’s nomination paper along with the oath form filled up and signed before presentation, HELD : There was no sufficient compliance with s. 51 (a) and therefore’  the candidate was not qualified to be chosen  to fill the seat in the Legislature under the section, and  his nomination paper was liable to be rejected by the  Returning Officer  at the time of scrutiny under s. 47(2) (a)  of  the Jammu  and  kashmir Representation of the People  Act,  1957 [601 FF, H; 602 A-B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  to.  1527  of 1968. Appeal under s. 123 of the Jammu and Kashmir  Representation of  the People Act, 1957 from the Judgment and  order  dated April  29,  1968  of the Jammu and  Kashmir  High  Court  in Election, Petition No. 33 of 1967. R.   N. Bhalgotra and S. S. Khanduja, for the appellant. R.   K. Garg, S. C. Agarwal, D. P. Singh and S. Chakravarti,

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for the respondent. The Judgment of the Court was delivered by Bachawat, J. This appeal is directed against a judgment of a :Single  Judge  of  the  High Court  of  Jammu  and  Kashmir dismissing an  election  petition for  setting  aside  the election   of  the  respondent  Jagat  Ram  Aryan   to   the legislative  assembly of the State of Jammu &  Kashmir  from the Bhaderwah scheduled cast assembly constituency. The  last date for filing the nomination papers was  January 20,  1967.   The date of scrutiny of nomination  papers  was January 23, 598 1967.  The date of poll was February 21’, 1967.  The date of counting  and  declaration  of result  was  March  1,  1967. Several  candidates filed their nomination papers from  this constituency.   The candidates were : (1) Jagat  Ram  Aryan, (2) Faquir Chand, (3) Narain Dass, (4) Nikka Ram, (5) Bhagat Ram, (6) Om Parkash and (7) Swami Raj.  The first five filed their  nomination  papers  on January 23,  1967  before  the Assistant  Returning  Officer, Kahan Singh, a  Tehsildar  of Bhaderwah.   On  scrutiny  of  the  nomination  pipers,  the Returning   Officer  Abdul  Gani  accepted  as   valid   the nomination papers of Jagat Ram and Faquir Chand and rejected the  nominations  papers  of the  remaining  candidates  for various reasons.  At the poll the contest was between  Jagat Ram,  the congress candidate and Faquir Chand, the  National Conference  candidate.  Respondent Jagat Ram having  secured larger number of votes was declared elected. The  appellant,  a  voter in  the  constituency,  filed  the election   petition  for  setting  aside  the   respondent’s election on the ground that the nomination papers of  Narain Dass,  Nikka  Ram and Bhagat Ram were  improperly  rejected. The  High Court found. that the nomination paper  of  Bhagat Ram  was  properly rejected and this finding  is  no  longer challenged. The  nomination  paper of Nikka Ram was  rejected  on  three grounds  :  (1) he did not make and subscribe  the  oath  or affirmation as required by s. 51 (a) of the Jammu &  Kashmir Constitution;  (2) he was not a member of a scheduled  caste and  (3)  his father’s name was not correctly shown  in  the electoral  rolls.  The nomination paper of Narain  Dass  was rejected on two grounds : (1) he did not make and  subscribe the oath or affirmation as required by s. 51 (a) and (2)  he was not a member of a scheduled caste.  The High Court found that  both  Narain Dass and Nikka Ram were  members  of  the scheduled caste "Megh".  It also held that the error in  the electoral roll with regard to the name of Nikka Ram’s father was  not a ground for rejecting his nomination paper  having regard  to  s. 44 (4) of the J. & K. Representation  of  the People  Act, 1957.  The High Court also rejected  the  addi- tional contention that Narain Dass had not made a deposit of Rs. 125 in conformity with s. 45 (2) of the Act.  All  these findings are no longer challenged. The only point now in issue is whether Narain Dass and Nikka Ram made and subscribed the oath or affirmation as  required by s.     51  (a) of the J. & K. Constitution.   Section  51 (a) provides               "A person shall not be qualified to be  chosen               to fill a sent in the Legislature unless he-               (a)   is  a permanent resident of  the  State,               and  makes and subscribes before  some  person               authorised  in  that behalf  by  the  Election               Commission of India an oath or                                    599               affirmation according to the form set out  for

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             the purpose in the Fifth Schedule." The  Returning Officer and the Assistant  Returning  Officer were authorised in this behalf by the Election Commission of India by notification No. 3/4 J & K/65 as the persons before whom  the oath or affirmation could be made and  subscribed. The  prescribed form of oath or affirmation to be made by  a candidate of’ the State legislature is               "I, A.B., having been nominated as a candidate               to  fill a seat in the  Legislative  Assembly,               (or legislative Council) do swear in the  name               of  God/solemnly affirm that I will bear  true               faith  and allegiance to the  Constitution  of               the  State  as by law established and  that  I               will  uphold the sovereignty and integrity  of               India." Section 44 of the J. & K. Representation of the People  Act, 1957  provides  for presentation of  nomination  papers  and prescribes  certain  requirements for  a  valid  nomination. Section  45  provides for deposits.  Section 46  deals  with notice  of  nominations. and the time and  place  for  their scrutiny.  Section 47 (2) (a) reads :-               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  en-               quiry, 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  provisions               of sections 51 and 69 of the Constitution  and               Part VI of this Act;...... Form 2A of the J. & K. Representation of the People (Conduct of  election and election petition) Rules,  1957  prescribes the form of nomination paper for election to the legislative assembly. It is common case that along with their nomination"  papers. both  Narain Dass and Nikka Ram filed oath forms  signed  by them.   The  appellant’s  case is that at the  time  of  the presentation  of’ their nomination papers both  Narain  Dass and  Nikka Ram made, oaths and signed the oath forms in  the presence of the Assistant Returning Officer.  In support  of this  case, the appellant examined’ Narain Dass, Nikka  Ram, Abdul Qayum and Abdul Rehman.  The respondent’s case is that Narain  Dass  and Nikka Ram did’ not make or  subscribe  any oath or affirmation before the Assistant Returning  Officer, that  the  oath forms had been filled up and  signed  before they were presented to him and were not signed in his. 600 presence.   In support of his case the  respondent  examined Kahan  Singh,  the Assistant Returning Officer..  and  Abdul Gani,  the Returning Officer.  The High Court  accepted  the respondent’s case. It should be remembered that the requirement of, making  and subscribing an oath or affirmation was inserted in s. 51 (a) of  the  J.  & K. Constitution  by  the  Constitution  Sixth Amendment  Act,  1965.  There is ground for  believing  that Narain  Dass and Nikka Ram were not aware of this  provision and  for this reason they omitted to make or  subscribe  any oath or affirmation before the Assistant Returning Officer. Our attention was drawn to Instruction No. 7 (7) in  Chapter II at p. 19 of the Handbook for Returning Officers,  issued

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by  the Election Commission, India, for  General  Elections, 1967.  The aforesaid instruction was as follows :-               "The oath or affirmation has first to be  made               and  then signed by the candidate  before  the               authorized  officer.   It should be  borne  in               mind  that mere signing on the paper on  which               the  form  of  oath  is  written  out  is  not               sufficient.  The, candidate must make the oath               before the authorised officer.  Accordingly he               will ’ask the candidate to read aloud the oath               or  affirmation  in English  or  the  regional               language  and then to sign and date the  paper               on  which the bath or affirmation is  written.               in the case of illiterate persons who want  to               contest  elections,  and who  cannot  properly               make and subscribe the oath or affirmation the               authorised   officer,  should  read  out   the               prescribed  oath  and  ask  the  candidate  to               repeat the same and thereafter take his  thumb               impression  on the form on which the  oath  is               printed or cyclostyled in token of his  having                             subscribed  the oath.  The authorised  officer               should endorse on this paper that the oath  or               affirmation  has  been  made  and   subscribed               before  the  candidate on that day.   He  will               immediately   furnish  to  the   candidate   a               certified copy thereof keeping a copy for your               record.  The candidate will produce this  copy               as evidence before you at the time of scrutiny               of nomination papers.  This copy will be given               to   the  candidate  forthwith   without   his               applying  for it, nor any fee be  charged  for               it." Kahan   Singh  the  Assistant  Returning  Officer  was   not conversant  with these instructions.  He did not ask  either Narain  Dass  or Nikka Ram to read the oath or to  sign  the oath  form  in  his  presence.   But  the  breach  of  these instructions  does  not entitle them to say that  they  had made and subscribed the oath before the Assistant  Returning Officer  when  in fact they did not make or subscribe  the oath before him. 601 It is admitted by the appellant that the oath forms filed by Narain  Dass and Nikka Ram did not bear any endorsement  of’ the  Assistant Returning Officer, stating that the  oath  or affirmation had been made and subscribed before him nor  was any certificate of such endorsement furnished to them.   The absence of the endorsement on the oath forms tend to suggest that no oath or affirmation was made and subscribed by them’ before the Assistant Returning Officer.  Neither Narain Dass nor  Nikka  Ram could produce before the  Returning  Officer Abdul Gani any evidence of their making and subscribing  the oath or affirmation.  Abdul Gani gave them an opportunity to produce affidavits in proof, of this,, fact but they did not file  any affidavit or any other evidence before  him.   The appellant  examined  witnesses to prove that  attempts  were made  to  file such affidavits, but the High  Court  rightly rejected the testimony of these witnesses.  The  materials,. on the record corroborate the testimony of Kahan Singh,  the Assistant  Returning Officer that Narain Dass and Nikka  Ram did not sign the oath forms in his presence and did not make the  oath or affirmation before him.  Narain Dass and  Nikka Ram  were  Jana  Sangh candidates.  Abdul  Qayum  and  Abdul Rehman  were their party men.  All of them  were  interested

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witnesses.  Having regard to all the materials on the record it is impossible to prefer their testimony to that of  Kahan Singh.   In  agreement  with the High  Court  we  hold  that neither  Narain  Dass and Nikka Ram, signed the  oath  forms before the Assistant Returning Officer nor did they make the oath or affirmation before him. On  January  23, 1967 both Narain Dass and Nikka  Ram  filed with  the Assistant Returning Officer signed and  filled  up oath  forms along with their nomination  papers.   In  our opinion  this,  was  not  sufficient  compliance  with   the requirement of s. 5 1 (a). In  Pashupati  Nath  v. Harihar Prasad(1)  this  Court  held that-the nomination paper was liable to be rejected under s. 3  6 (2) (a) of the Representation of the People  Act,  1951 corresponding to s. 47 (2) (a) of the J. & K. Representation of  the People Act,, 1957 if the qualification  required  by Art. 173 (a) of the Constitution corresponding to s. 51  (a) of  the  J. & K. Constitution did not exist on the  date  of scrutiny  of nominations.  In that case no signed oath  form was  attached to the nomination paper or filed’  before  the date  fixed for scrutiny.  In the present case  signed  oath forms  along  with  nomination papers were  filed  with  the Assistant  Returning Officer on January 23, 1967 before  the date  fixed forscrutiny. But this fact makes no  difference. They  neither  made nor subscribed the oath  or  affirmation before the Assistant Returning Officer as required by s.  51 (a).  On the date fixed for the scrutiny of nominations they were not qualified to be chosen to, (1)  [1968] 2 S.C.R. 812, A.I.R. 1968 S.C. 1064. 602 fill the seat in the legislature under s. 51 (a) of the J. & K.  Constitution and their nomination papers were liable  to be   rejected  under  s.  47  (2)  (a)  of  the  J.   &   K. Representation of the People Act, 1957. In  the result, the appeal is dismissed.  There will  be  no order as to costs. V.P.S.                         Appeal dismissed. 603