Pashupati Nath Singh Vs. Harihar
Prasad Singh [1968] INSC 12 (22 January 1968)
22/01/1968 SIKRI, S.M.
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 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]
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 respondent.
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 Representation 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 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 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 section 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 (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. 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. 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 paperin 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 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.
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