Case Note & Summary
Shri Subhan Khan, the respondent, filed an election petition challenging the election of Shri J.H. Patel, the appellant, from 158 Channagiri Legislative Assembly Constituency on the ground that his nomination paper was improperly rejected by the Returning Officer. The nomination paper was proposed by E. Shekharappa on October 29, 1994. The Returning Officer issued notice requiring the respondent to make and subscribe oath before scrutiny scheduled on November 3, 1994; the preceding two days were public holidays. On November 3, 1994, the respondent took oath before the Tehsildar, Channagiri, at 10.55 a.m., while scrutiny was to commence at 11.00 a.m. The Returning Officer rejected the nomination. The respondent had also taken oath on October 27, 1994 at Davanagere constituency, evidenced by Ex.P.1, but did not bring this fact to the Returning Officer's notice. Elections were held on November 26, 1994; appellant declared elected on December 9, 1994. The High Court held same-day oath insufficient but accepted the prior oath from Davanagere as qualifying, and allowed respondent to raise fresh material before it, thereby setting aside the election. The Supreme Court considered whether the oath at 10.55 a.m. on November 3, 1994 sufficed; whether the prior oath of October 27, 1994 at Davanagere could be considered; and whether the election could be set aside based on prior oath when that fact was not disclosed to the Returning Officer. The appellant contended the High Court erred in allowing fresh material, as the Returning Officer was right to reject on material before him; reliance on fresh oath would lead to misuse. The respondent contended same-day oath valid and disputed the finding of non-disclosure. The Court agreed with the High Court that oath under Article 173 must be taken prior to the date of scrutiny, adopting the interpretation of Section 36(2)(a) from Pashupati Nath Singh and Khaje Khanavar that qualification must exist from the earliest moment of the scrutiny day. It noted Ram Swarup was under Article 191 and not applicable. On the prior oath, there was no controversy that an oath taken for any constituency remains valid; however, the prior oath must be subjected to scrutiny and cannot be established merely by information. The certificate Ex.P.1 did not reproduce the oath, depriving other candidates of opportunity to object. The Court concurred with the High Court's factual finding that the respondent did not inform the Returning Officer of the prior oath. It held the High Court erred in allowing a fresh plea and fresh material to prove improper rejection; the Returning Officer's decision must be judged on material before him, and undisclosed prior oath cannot vitiate the rejection. Accordingly, the Supreme Court allowed Civil Appeal No.1795/96, dismissed Civil Appeal No.3677/96 (cross objections), set aside the High Court order dated January 3, 1996, and consequently dismissed the election petition.
Headnote
A) Election Law - Nomination Paper Scrutiny - Oath Under Article 173 Must Precede Date of Scrutiny - Constitution of India, Article 173; Representation of the People Act, 1951, Section 36(2) - The expression "on the date fixed for scrutiny" in Section 36(2)(a) means the whole day of scrutiny and qualification must exist from earliest moment. Candidate who took oath at 10.55 a.m. on scrutiny day, minutes before 11.00 a.m. scrutiny, was not qualified at required time. Held that Returning Officer was justified in rejecting nomination for lack of prior oath (Paras not mentioned). B) Election Law - Prior Oath and Cross-Constituency Validity - Oath Taken for One Constituency Valid for Another - Constitution of India, Article 173 - It was not seriously disputed that oath under Article 173 once taken for any constituency remains valid for election to the concerned assembly. However, the prior oath must be subjected to scrutiny on the date and place fixed and cannot be presumed from mere information. Held that prior oath valid but Returning Officer's scrutiny required disclosure and verification (Paras not mentioned). C) Election Law - Returning Officer's Scrutiny and Material Disclosure - Certificate Not Reproducing Oath Text Insufficient - Representation of the People Act, 1951, Section 36(2) - Ex.P.1 certificate only recorded that candidate made and subscribed oath, but did not reproduce the oath itself; without oath text other candidates could not examine validity or raise objections. Held that Returning Officer could not rely on undisclosed prior oath and rejection on material before him was proper (Paras not mentioned). D) Election Law - Fresh Plea and Evidence in Election Petition - Error in Allowing Fresh Material Not Before Returning Officer - Representation of the People Act, 1951, Section 36(2) - High Court erroneously allowed respondent to prove improper rejection of nomination by raising fresh ground and producing fresh material before High Court, although such facts were not brought to Returning Officer's notice. Held that election cannot be set aside on basis of prior oath not disclosed at scrutiny; Supreme Court allowed appeal, set aside High Court order and dismissed election petition (Paras not mentioned).
Issue of Consideration
Whether oath taken at 10.55 a.m. on scrutiny date satisfied Article 173; whether prior oath at Davanagere on October 27, 1994 could be considered despite non-disclosure to Returning Officer; whether High Court could allow fresh plea and fresh material to set aside election
Final Decision
The Supreme Court allowed Civil Appeal No.1795/96, set aside the High Court order dated January 3, 1996, dismissed Civil Appeal No.3677/96 (cross objections), and consequently dismissed the election petition. The rejection of the respondent's nomination paper by the Returning Officer was upheld, and the appellant's election was confirmed.
Law Points
- Oath under Article 173 of Constitution must be taken prior to date of scrutiny
- not on same day
- Section 36(2) of Representation of the People Act
- 1951 requires qualification from earliest moment of scrutiny date
- prior oath for any constituency valid but must be disclosed and subjected to scrutiny
- certificate not reproducing oath text insufficient
- election petition cannot rely on fresh material not before Returning Officer
