Sheikh Abdul Rehman Vs. Jagat Ram
Aryan  INSC 32 (11 February 1969)
11/02/1969 BACHAWAT, R.S.
CITATION: 1969 AIR 1111 1969 SCR (3) 597 1969
SCC (1) 667
RF 1990 SC 895 (2,3)
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
Section 51(a) of the Jammu and Kashmir
Constitution provides that a personís 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
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]
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
R. N. Bhalgotra and S. S. Khanduja, for the
R. K. Garg, S. C. Agarwal, D. P. Singh and S.
Chakravarti, 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
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
The High Court found. that the nomination
paper of Bhagat Ram was properly rejected and this finding is no longer
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
additional 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
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 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
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 enquiry, 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
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 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
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
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 for scrutiny. 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)  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.