Karnataka High Court
Subhan Khan vs J.H. Patel on 3 January, 1996
Equivalent citations: AIR1996KANT232, 1996(1)KARLJ602, AIR 1996 KARNATAKA 232
ORDER
1. This Election Petition is filed for a declaration that the election of the Respondent Sri J.H. Patel, as void under Section 100(1)(c) of the Representation of the People Act, 1951 in respect of 158 Channagiri Legislative Assembly Constituency of 10th Karnataka Legislative Assembly General Election and to order repoll to that Constituency.
2. The allegations in the petition are to the effect that the election to the 158 --Channagiri Legislative Assembly Contituency, Shimoga District, to fill the seat for the 10th Karnataka Legislative Assembly General Elections was held on 26-11-1994. The Returning Officer had published the calendar of events by issuing a public notice dated 24-10-1994 relating to Shimoga District. Similarly, the Returning Officer in Davanagere Legislative Assembly Constituency issued Calendar of Events for holding election to the said constituency. The petitioner had filed his nomination paper personally to contest the election in Davanagere Legislative Constituency and had taken oath as required under Art. 173 of the Constitution of India.
3. One Sri E. Shekharappa, a voter of 158 -- Channagiri Constituency filed a nomination paper proposing the petitioner as candidate for election to fill the seat, on 29-10-1994. The Returning Officer issued a notice dated 29-10-1994 though the proposer to the petitioner to make and subscribe an oath or affirmation of the petitioner before the date appointed for scrutiny of nomination paper. It is alleged in the petition that at the time of filing of the nomination paper, the petitioner was at Bombay and he could not take oath as required under Art. 173 of the Constitution of India before the competent authority as the petitioner was not aware of the said nomination. He came to Channagiri on 31-10-1994 at about 8 P.M. and that, on coming to know about he fact, the immediately made efforts to contact the second respondent to take necessary oath, but the competent authorities were not available at Channagiri, The Office of the competent authorities empowered to administer oath were closed on 1st and 2nd Nov. 1994 on account of Rajyothsava and Naraka Chathurdhashi being public general, holidays. The petitioner, further alleges that he went to the Office of the Returing Officer which is located in the Office of the Tahsildar, Channarigi, on 3-11-194 at 9 a.m. the day fixed for scrutiny nomination papers to take necessary oath. The petitioner took oath under Art. 173 of the Constitution of India at 10.55 a.m. on 3-11-1994 before the Tahsildar, Channagiri Taluk, before the commencement of scrutiny of nomination papers. The scrutiny of nomination papers were commended at 11 a.m. on 3-11-1994 and the petitioner produced the Certificate for having taken an oath under Art. 173 of the Constitution of India at 10.55 A.M. on the same day before the Returning Officer. It is further alleged by the petitioner that, at the time of the scrutiny of the nomination paper, the petitioner also informed the second respondent that he had filed one nomination to Davanagiri Constituency and had taken oath before the Returning Officer of that Constituency. The second respondent without considering those facts, passed an order dated 3-11-1994 improperly rejecting the nomination of the petitioner on the ground that the petitioner had not made and subscribed an oath or affirmation as required by Art. 173(a) of the Constitution of India within the time. The Returning Officer, in the said order, refused to mention the fact that the petitioner had alread taken an oath or affirmation under Art. 173 of the Constitution relating to his nomination in Davanagere Constituency on the ground that it would not help him to accept his nomination in Channagiri Constituency. As" a result of this improper rejection of the nomination paper of the petitioner, who got 'B' Form from the 'Samajavadhi Party' which is a national party and which was having a bright chances of success in the election, was excluded from contesting the election and only 11 persons including the Respondent were left in the fray. The elections were held on 26-11-1994 and the respondent was declared elected on 9-12-1994 who was nominated by Janata Dal party. The petitioner is challenging the election of the respondent on the ground that the petitioner's nomination was improperly rejected on the ground that the Returning Officer failed to consider that the pelitioner took oath on 3-11-1994 well before the commencement of the scrutiny of nomination paper and submitted the Certificate for having made oath at 10.55 a.m. before the commencement of the scrutiny of the nomination paper. It is his case that, he had taken the oath before the commencement of scrutiny and that he was qualified under the relevant provisions of the Act and the Constitution. It is alleged in the petition that the Returning Officer failed to consider that, either the Representation of People Act, 1951 or any other Act or Rules, do not prescribe the time within which the oath should be taken by the candidate nominated to contest the election and accordingly, the oath made by the petitioner before the scrutiny of nomination paper was proper. It is further alleged that the Returning Officer contrary to Section 36 of the Representation of People Act had improperly rejected the nomination of the petitioner and thereby it materially affected the results of the election. It is further alleged that the Returning Officer ought to have seen that the petitioner had already taken oath or affirmation under Art. 173 of the Constitution before the Returning Officer of Davanagerc Constituency before 3-11-1994, the date of scrutiny at Channagiri Constituency. On these grounds, the petitioner has prayed for declaring the election of the respondent as void and for an order of repoll.
4. The respondent has filed a written statement, in which, publication of the calendar of events and appointment of the Returning Officer etc., are admitted. But the allegation of the petitioner that he had filed his nomination paper to contest the electipn to Davanagere Legislative Assembly Constituency and had taken an oath as required under Art. 173 of the Constitution was not admitted by the respondent and the petitioner was put to the strict proof of the same. The averments contained in the petition that, at the time of filing of nomination paper, the petitioner was at Bombay, and he could not take oath as required under Article 173 of the Constitution before the competent authority as the petitioner was not aware of the said nomination are denied. It is stated that the petitioner was very much aware of the fact of the proposer E. Shekharappa presenting his nomination paper on 29-10-1994. The allegation in the petition that the petitioner immediately made efforts to contract the second respondent to take necessary oath and that the competent authorities were not available at Channagiri is absolutely false and is denied. It is further stated that the nomination paper of the petitioner was not in accordance with law and that the nomination paper filed by the petitioner was defective and that he had not taken an oath as required under Art. 173 of the Constitution of India before the date of scrutiny. The allegation of the petitioner that, at the time of scrutiny, the petitioner informed the second respondent that he had filed a nomination at Davanagere Constituency and had taken oath before the Returning Officer of that Constituency is absolutely false and it is denied. The petitioner was put to the strict proof of the same. It is further stated in the objections that, at the time of scrutiny, the petitioner neither informed the Returning Officer nor brought to his notice about his filing a nomination paper for Davanagere Constituency and having taken oath before the Returning Officer of that Constituency. It is further stated in the objections that the rejection of the nomination paper of the petitioner was proper as he had not made and subscribed an oath or affirmation under Art. 173 of the Constitution of India within the prescribed time. It is further stated that the petitioner neither informed the Returning Officer nor brought it to his notice about the filing of nomination in Davanagere Constituency and having taken oath before the Returning Officer of that Constituency. Since this fact was not brought to the notice of the Returning Officer, he has not made any reference to the same in his order rejecting the nomination paper of the petitioner. It is further stated that the oath taken by the petitioner at 10.55 a.m. on the date of scrutiny is not sufficient and that the oath should have been taken before the date of scrutiny. In regard to the allegation in the petition that the Returning Officer ought to have sent that the petitioner had already taken an oath under Art. 173 before the Returning Officer of Davanagere Constituency before 3-11-1994 is denied. It is stated in the objections that the petitioner neither informed the Returning Officer nor produced any documents to show that he had taken an oath under Art. 173 of the Constitution of India before the Returning Officer of Davanagere Constituency at the time of scrutiny of nominalion paper for the Channagiri Constituency. Even assuming that the petitioner had taken oath under Art. 173 of the Constitution prior to 3-11-1994 before the Returning Officer of Davanagere Constituency, the same will not hold good in respect of another constituency unless and until such an oath is also taken before the Returning Officer of 158 Channagiri Constituency before the date of scrutiny. It is further stated that the Returning Officer rightly rejected the nomination paper of the petitioner, and that no grounds are made out to set aside the election of the respondent.
5. On the basis of the pleadings in the case, the following issues were raised for trial:
(1) Whether the petitioner proves that he took oath in Davanagere Constituency as required under Art. 173 of the Constitution of India on 27-10-1994?
(2) Whether the petitioner proves that he brought to the notice of the Returning Officer, Channagiri Constituency at the time of scrutiny about this factum of oath he had taken in Davanagere Constituency?
(3) Whether the petitioner proves that the oath taken by him in Davanagere Constituency as required under Art. 173 of the Constitution of India will also hold good for Channagiri Constituency?
(4) Whether the petitioner proves that the oath he has taken before the Assistant Returning Officer at Channagiri Constituency before the commencement of scrutiny and if so, is it in accordance with law?
(5) Whether the petitioner proves that his nomination paper has been improperly rejected by the Returning Officer, Channagiri?
(6) Whether the Election of the first Respondent from Channagiri Constituency is liable to be set aside?
(7) What order?
6. On behalf of the petitioner, P.Ws. 1 to 9 were examined and on behalf of the Respondent, R.Ws. 1 and 2 were examined. Documents were also produced by the respective parties.
7. On the basis of the pleadings and the arguments of the learned Counsel on both the sides, the questions that arise for consi-deiation in this Election Petition arc as to :
(i) Whether the oath taken before the Returning Officer, Channagiri, on 3-11-1994 at 10.55 a.m. is sufficent for obtaining qualification as provided for under Art. 173 of the Constitution of India?
(ii) Whether the petitioner brought to the notice of the Returning Officer, Channagiri the fact of his taking oath at Davangere on 27-10-1994 and even if he had not brought it to the notice of the Returning Officer, Channagiri, whether he is entitled to prove the same before this Court in this Election Petition?
AND
(iii) Whether the oath taken by the petitioner at Davanagere on 27-10-1994 will be sufficient compliance with Art. 173 of the Constitution of India for contesting the election from Channagiri Constituency and in the circumstances of the case, whether the rejection of the nomination paper of the petitioner was improper or not?"
As these are the questions which were raised by the learned Counsel on both the sides, I shall consider the issues in the case in the order in which it was argued before me by the learned Counsel for the parties. Accordingly I shall consider Issue No. 4 first;
8. Issue No. 4 : The question that arises for consideration under this issue is as to whether the oath taken by the petitioner at 10.55 a.m. before the Returning Officer, Channagiri, on 3-11-1994, the date of scrutiny, would qualify him under Section 36 of the Representation of the People Act. It is an admitted fact that the nomination paper of the petitioner was filed on 29-10-1994 and that he took the oath under Art. 173 of the Constitution of India before the Assistant Returning Officer, Channagiri Constituency, at 10.55 a.m. on 3-11-1994. The scrutiny of the nomination papers were to start at 11 a.m. on that day. Ex. P. 3 is the Certificate issued by the Returning Officer, Channagiri Constituency, to the effect that, the petitioner look an oath at 10.55 a.m. on that date and the fact is not disputed by the Respondent also. Under Section 36(2)(a) of the Representation of People Act, the nomination paper of a candidate can be rejected if on the date fixed for scrutiny of nomination the candidate is either not qualifed or is disqualified for being chosen to fill the seat under Arts. 84, 102, 173 and 191 of the Constitution of India. It is the case of the petitioner tha't he had taken the oath at 10.55 a.m. no doubt, on the date of scrutiny, but before the scrutiny actually commenced. On the other hand, learned Counsel for the respondent contended that, under Section 36(2)(a), he must be qualified under Art. 173 of the Constitution of India on the date fixed for the scrutiny of nomination and accordingly, the oath taken on that day is not in accordance with the above section and accordingly, the petitioner is not qualified. Under Section 36(2)(a) of the Representation of People Act, a candidate has to be qualified to become a member under Art. 173 of the Constitution of India on the date fixed for the scrutiny of the nomination. The question to be considered is as to whether it is enough if a candidate lakes the oath on the date of scrutiny as in this case. The words "on the date fixed for the scrutiny of nomination" have come up for consideration before the Supreme Court in regard to the qualification under Art. 173 of the Constitution of India in Pashupati Nath Singh v. Harihar Prasad Singh . In that case, the question that was considered by Their Lordships of the Supreme Court, as could be seen from paragraph 4 of the Judgment is, as to whether it is necessary for a candidate to make and subscribe the requisite oath or affirmation as enjoined by clause (a) of the Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper. In answering that question, considering the provisions of the Representation of the People Act and especially, Section 36(2)(a) of the Representation of the People Act and the form of oath, it is held in that decision that the oath or affirmation is necessary before the date fixed for scrutiny of nomination paper. It is pertainined to quote paragraphs 13 and 16 of that Judgment which read thus:
"(13) It seems to us that the expression "on the date fixed for scrutiny" in Section 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 Section 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."
"(16) 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 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath."
The above decision makes it clear that the oath has to be made and subscribed before the date fixed for scrutiny and that it is not sufficient if the oath is subscribed on the date of the scrutiny. The principle laid down in this decision was followed by Their Lordships of the Supreme Court in a later decision reported in Khaje Khanavar Khadarkhan Hussain Khan v. Siddavanahalli Nijaling appa, , wherein, Their Lordships held in paragraph 4 of the Judgment that the oath or affirmation must be before the date fixed for scrutiny, so that, the Candidate possesses the qualification under Art. 173(a) of he Constitution on the whole of the day on which the scrutiny of nomination has to take place. In that case, Their Lordships further held that the affirmation made just before the scrutiny of the nomination paper will not be sufficient to acquire the said qualification.
9. The learned Counsel for the respondent placed strong reliance on these two decisions of the Supreme Court to contend for the position that the oath taken by the petitioner at 10.55 a.m. on the date of scrutiny would not qualify him under Art. 173 of the Constitution of India. On the other hand, learned Counsel for the petitioner contended that, in Pashupati Nath Singh's case , as the candidate had not taken the oath even on the date fixed for scrutiny and in these circumstances, it cannot be said that it is laid down as a general Rule that an oath taken before the scrutiny will qualify a candidate. It is further contended that in HussainKhan'scase , this question did not directly arise for consideration. He also placed reliance on a subsequent decision of the Supreme Court in Ram Swarup v. Hari Ram for the position that it is enough if he is qualified at the time of scrutiny. In Ram Swarup's case, the question was one of disqualification under Art. 191 of the Constitution of India. In the case, the appellant was holding the post of District Extension Educator (Family Planning). He wrote a letter on 20-4-1980 to the concerned authority resigning his post and to accept the same with effect from 30-4-1980. On 2-5-1980 the appellant was informed that his resignation was accepted with effect from 30-4-1980 with the stipulation that the appellant must pay one month's salary in lieu of notice. On 3-5-1980, a sum of Rs. 500/-representing a month's salary was deposited by the appellant and on the same date, he handed over charge of his office on 3-5-1980, the date fixed for scrutiny of nomination, the appellant produced a receipt in proof of his having deposited a month's salary. Though Their Lordships held that the resignation should be deemed effective only from the time when he made payment of one month's salary, on 3-5-1980, it had taken effect before the Returning Officer commenced the examination of the nomination papers and interpreting Section 36(2)(a) held that if the disqualification is removed before the scrutiny of the nomination commenced, the appellant cannot be regarded as holding an office of profit at the relevant time. In other words, Their Lordships held that, if the disqualification is removed before the actual scrutiny of the nomination papers, the same cannot be rejected on that ground. In this decision, Their Lordships held that:
"To our mind, according to the scheme for the conduct of elections the candidate should not be not qualified or disqualified when the scrutiny of nomination is taken up by the Returning Officer for the purpose of finalising the list of nominated candidates. This, in our opinion, is the proper construction to put on the words "the date fixed for the scrutiny of nominations".
In that view, Their Lordships held that the resignation of the appellant having taken effect before the scrutiny of the nomination, was fixed, the appellant was qualified.
10. It can thus be seen that, two earlier decisions of the Supreme Court, referred to above, have taken a view that to acquire qualification under Art. 173 of the Constituion of India, the oath has to be subscribed before the date fixed for scrutiny. But in Ram Swarup's case while considering the impact of Art. 191 of the Constitution of India, Their Lordships of the Supreme Court held that the disqualification has to be judged as at the time of scrutiny of the nomination paper and not before. So, apparently, there is a conflict between the earlier two decisions and the later decision in Ram Swarup's case. But it is to be noted that, in Pashupati Nath Singh's case, the interpretation of Section 36(2)(a) of the Representation of the People Act, vis-a-vis, qualification under Art. 173 of the Constitution of India directly came up for consideration before the Court, in which, Their Lordships have categorically held that the quaification under Art. 173 of the Constitution of India must be acquired before the date of scrutiny and that it is not enough if it is acquired on the date of scrutiny. That decision was rightly understood in that manner by a later Bench of the Supreme Court in Hussain Khan's case of that Judgment, considering Pashupati Nath Singh's case , the Supreme Court observed:
"In that case, this Court has clearly held that the effect of the provision contained in Section 36(2)(a) of the Act is that the oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under Art. 173(a) of the Constitution on the whole of the day on which the scrutiny of nomination has to take place. Even though this ground was not raised in the High Court, we consider that we cannot now ignore it and we have to hold that the High Court was incorrect in rejecting the plea of the appellants on the ground that valid affirmation had been made by Respondent No. 1 on 21st January, 1967, just before the scrutiny of his nomination paper."
11. The decisions in Pashuputi Nath Singh's case and Hussain Khan's case were directly in relation to the qualification under Art. 173 of the Constitution of India, whereas, the decision in Ram Swarup's case was in regard 10 disqualification under Art. 191 of the Constitution of India. As the question involved in the present case is as to whether the petitioner is qualified under Article 173 of the Constitution of India, I am bound to follow the earlier two decisions, wherein, identical question came up for consideration in preference to the decision in Ram Swarup's case, which was a case under Art. 191 of the Constitution of India.
12. I am unable to accept the arguments of the learned Counsel for the petitioner that the question as to whether an oath subscribed just before the nomination is sufficient did not come up for consideration in the earlier cases and the observations are to be understood in the context in which it was said. In both the decisions, Their Lordships have clearly held that the oath or affirmation has to be subscribed before the date of scrutiny in order to acquire the necesary qualification. In this case the scrutiny of the nomination papers were on 3-11-1994 and the petitioner took an oath under Art. 173 of the Constitution of India only at 10.55 a.m. on that day as evidenced by Ex. P. 3 and as admitted by the petitioner. As the petitioner is not qualified on the whole day, the said oath taken by the petitioner will not be sufficient to hold that he was qualified under Art. 173 of the Constitution of India. Accordingly, I find Issue No. 4 against the petitioner.
13. Issue No. I: The fact that the petitioner took an oath in Davanagere Constituency as required under Art. 173 of the Constitution of India on 27-10-1994 is amply proved in this case nor it was disputed by the respondent at the time of hearing. Ex. P.1 is the Certificate dated 27-10-1994 which clearly proves that the petitioner had taken an oath as required under Art. 173 of the Constitution of India on 27-10-1994, before the concerned authorty. P.W. 7 has proved the same and accordingly, I hold that the petitioner has satisfactorily proved of his having taken an oath in Davanagere Constituency as required under Art. 173 of the Constitution of India on 27-10-1994.
14. Issue No. 2: The petitioner has alleged in the petition that he brought to the notice of the Returning Officer, Channagiri, at the time of scrutiny about the fact of his having taken an oath in the Davanagere Constituency. This fact is stoutly denied by the respondent. In support of his case, that the petititioner brought to the notice of the Returning Officer this fact apart from his evidence, he has also examined P.Ws. 2, 3, 4, 8 and 9. The peti-
tioner is examined himself as P.W. 1. The above witnesses have given evidence to the effect that the petitioner brought to the notice of the Returning Officer the fact of his having taken an oath at Davanagere and also has given evidence to the effect that he showed Ex. P. 1 Certificate to the Returning Officer. P.Ws. 5 and 6 -- the Assistant Returning Officer and Returning Officer of Channagiri Constituency have given evidence in clear terms that the petitioner never brought to the notice of the Returning Officer at the time of scrutiny that he had taken an oath at Davanagere on 27-10-1994 nor did he show to him Ex. P.1 Certificate to the effect that he had taken such an oath at Davanagere. On an evaluation of the evidence of these witnesses, I am clearly of the opinion that the circumstances which exist in the case, leads me to the conclusion that the case of the petitioner that he brought this fact to the notice of the Returning Officer and that he showed the Certificate Ex. P. 1 to the Returning Officer at the time of scrutiny cannot be accepted. Ex. R.4 is the Attendance Register maintained by the Returning Officer in respect of persons who were present at the time of the scrutiny. That document is proved by both the Assistant Returning Officer and the Returning Officer and I do not find any reason to doubt the veracity of the same. Excepting P.Ws. 8 and 9 and the petitioner, none of the other witnesses examined on the side of the petitioner were present at the time of the scrutiny as could be seen from Ex.R.4. There is no allegation in the petition that the petitioner produced or showed Ex. P.1 Certificate to the Returning Officer though the witnesses speak to that effect. The only allegation in the petition is that the petitioner informed the Returning Officer regarding the fact of his having taken an oath at Davanagare. S. 36(1) of the Representation of the People Act provides that, on the date fixed for scrutiny, only the Candidates, their election agents one proposer of each candidate and one other person duly authorised by each candidate alone can be present. It is further provided that no other person may attend the scrutiny. Except P.Ws. 8 and 9, no other witnesses who gave evidence in support of petitioner were competent to be present at the time of scrutiny. As stated earlier, their evidence is contrary to the pleadings to the effect that the petitioner showed Ex. P.1 Certificate to the Returning Officer. P.W. 4 is none other than the father of the petitioner and he is necessarily interested. P.Ws. 8 and 9 though no doubt were present at the time of scrutiny, as could be seen from Annex-ure R.4, were also contestants for the election from the very same constituency and they would naturally be interested in giving evidence against the respondent. The other circumstances in the case also indicate that the petitioner would not have brought this fact to the notice of the Returning Officer. As stilted earlier, there is no pleading to the effect that Ex. P.1 Certificate was shown to the Returning Officer. Immediately on the filing of the nomination paper of the petitioner, Ex. P.2 notice was issued to the petitioner requiring him to take oath under Art. 173 of the Constitutioa of India. If the petitioner's case was true, naturally, he would have immediately brought to the notice of the Returning Officer Ex. P. 1 Certificate to the effect that he had already taken an oath at Davanagere. Instead of that, he was taking all steps, according to his own case, to take an oath before the authorised Officer of Channagiri constituency and as a matter of fact, he took the oath at 10.55 a.m. on 3-11-1994. P.W. 4 the father of the petitioner who caused the nomination paper of the petitioner to be filed had been contesting the election from 1978 onwards and he would have been well versed with election law. If the petitioner wanted to rely on Ex. P.1 Certificate, he would have certainly informed the Returning Officer as soon as he received Ex. P.2 notice. Instead, he took another oath at Channagiri on the date of scrutiny. Even in the order rejecting the nomination paper Ex. P.4, there is no mention about the fact that the petitioner , brought to the notice of the Returning Officer the fact of his having taken an oath at Davanagere. The case of the petitioner that the Returning Officer intentionally omitted the same cannot be accepted. There is no allegation of bias against the Returning Officer alleged in the petition. Though the learned counsel for the petitioner attempted to raise such a contention, on the basis that the respondent, at present, is the Deputy Chief Minister of Karnataka State. But the respondent at the time of scrutiny, was not a Minister. There is no foundation in the pleadings to that effect. If, as a matter of fact, the petitioner had raised such a ground before the Returning Officer, certainly, he would have mentioned it in the order rejecting the nomination paper. The absence of any mention regarding the oath taken at Davanagere in Ex. P.4 is very significant. I do not find any good ground for the Returning Officer not mentioning the same if the petitioner had actually brought to his notice. The Returning Officer has given clear evidence to the effect that such a fact was not brought to his notice and from the circumstances of the case, I do not find any reason not to accept the evidence given by him in that regard. Accordingly, it has to be held that the petitioner never brought to the notice of the Returning Officer, Channagiri, at the time of scrutiny about his having taken an oath at Davangere. This Issue is found against the petitioner.
15. Issue No. 3: The question to be considered in this issue is as to whether the oath taken by the petitioner under Art, 173 of the Constitution of India in Davanagere Constituency will qualify him to contest the election in Channagiri Constituency as well, in spite of the fact that the oath taken at Channagiri was not in time. It is admitted or proved fact that the petitioner had filed his nomination paper for contesting the election from Davanagere constituency on 27-10-1994 and that he had taken an oath before the concerned authority on the same day. Ex. P. 1 produced by the petitioner proves the same.
16. It is contended by the learned counsel for the respondent that there is no pleading to the effect in the Election Petition that the oath taken at Davanagere on 27-10-1994 would qualify him for contesting the election from Channagiri Constituency as well. But this contention cannot be accepted. The petitioner has clearly alleged in paragraph 4 of the petition that he had filed his nomination paper to contest the election in Davanagere Legislative Assembly Constituency and had taken an oath as required under Art. 173 of the Constitution of India. The Certificate issued to him is produced along with the Election Petition which is later marked as Ex. P. 1. The case of the petitioner was that, he brought this fact to the notice of the Returning Officer, Channagiri, which I have not accepted, but in the Ground (d), he has mentioned that the Returning Officer ought to have seen that the petitioner had already taken oath or affirmation under Art. 173 of the Constitution of India before the Returning Officer of Davanagere Constituency before 3-11-1994 the date of scrutiny at Channagiri Constituency. Under S. 83 of the Representation of the People Act, it is enough that an Election Petition contains a concise statement of the material facts on which the petitioner relies in support of his case. In this case, the petitioner is relying on the fact of his having taken oath at Davanagere before the scrutiny of nomination at Channagiri which would qualify him under Art. 173 of the Constitution of India in support of his case that the rejection of his nomination was improper. The relevant facts on which he relies, in support of his case, is that, he had already taken an oath at Davanagere on 27-10-1994 much before the date of scrutiny at Channagiri. Accordingly, the necessary allegations in regard to that effect are made in the Election Petition. He has clearly stated in the petition that he had already taken an oath at Davanagere which would be sufficient compliance with S. 83 of the Representation of the People Act and accordingly, I do not find my way to accept the case of the respondent that there is no pleading in regard to this matter.
17. As stated earlier, it is proved by the petitioner that he had taken an oath at Davanagere on 27-10-1994 which is before the dale of scrutiny at Channagiri on 3-11-1994. The only further question to be considered is as to whether that would be sufficient for qualifying him to contest the election from Channagiri Constituency. An identical matter was considered by the Supreme Court in Hussin Khan's case already mentioned while considering Issue No. 4. In that decision, it was categorically held that, if an affirmation is made under Art. 173 of the Constitution of India, in respect of one Constituency, the Candidate is bound by that oath if he gets elected from different constituencies and there is no necessity that he must make affirmation repeatedly on his being nominated from more than one Constituency, In paragraph 9 of that judgment, it is observed as follows:
"The purpose of Art. 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and intergrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affirmation is made before a competent authority in respect of one constituency, he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency, so that there is no necessity that he must make oath of affirmation repeatedly on his being nominated from more than one constituency. The language of Art. 173(a) also makes this very clear, because all that it requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State. The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency and recognises the fact that once the necessary qualification is obtained, that qualification removes the bar laid down by that Article. In these circumstances, this ground of disqualification for challenging the validity of the election of respondent No. I fails and must be rejected."
18. It is evident from the above decision that, if a valid oath or affirmation is made under Art. 173 of the Constitution of India, in one of the constituencies, after he is nominated from that constituency, that would be sufficient for him to contest from another constituency and that there is no necessity that, he must make a second oath or affirmation in the latter constituency as well.
19. But the learned counsel for the respondent strongly urged that, in the particular facts of this case, the oath or affirmation taken on 27-10-1994 at Davanagere will not be sufficient to qualify him for contesting from Chanagiri Constituency. The learned counsel contended that it is categorically laid down in Pashupati Nath Singh's case and in Hussain Khan's case that an oath or affirmation has to be taken after a Candidate has been nominated and only such an affirmation taken after being nominated would qualify him. It is further contended by the learned counsel for the respondent that, the nomination paper of the petitioner was presented in Channagiri constituency only on 29-10-1994, whereas, the oath taken by him at Davanagere was admittedly on 27-10-1994 and the affirmation being prior to his nomination at Channagiri, it would not qualify him from contesting from Chanagiri Constituency. I do not think that the above contention has any force. If a candidate has submitted his nomination paper in one constituency and has subscribed to an oath or affirmation thereafter before the concerned authority of that constituency that would qualify him for contesting the election from any other constituency. In other words, if an oath or affirmation is subscribed after filing a nomination paper in one constituency, that would qualify him under Art. 173 of the Constitution of India for contesting the election from any other constituency, which is the proposition laid down in Hussain Khan's case as could be seen from the facts of that case. In that case, the validity of election of Sri. Siddavanahalli Nijalingappa, respondent therein, to Shiggaon Constituency was the subject matter in issue. He filed the nomination paper in Shiggaon constituency on 20-11-1967. Sri. Nijalingappa had already taken an oath in Bagalkot constituency on 19-1-1967, wherein, he had filed his nomination. So also, he had filed the nomination paper at Hospet and had taken an oath before the Returning Officer of that constituency on the night of 20-1-1967.
The question that arose for consideration was whether the oath taken at Bagalkot and Hospet would suffice for contesting at Shigaon. Considering this matter, in paragraph 9, Their Lordships have proceeded on the basis that, when he made an affirmation before the Officer at Bagalkot, he was already a candidate nominated for election from that Constituency. So also Their Lordships have relied on the fact that when he made an affirmation before the Returning Officer at Hospet on the night of 20-1-1967, he had already been nominated as a candidate for the Hoovinahadagali Constituency. Taking into account these two oaths taken under Art. 173 of the Constitution, Their Lordships held that it will hold good for the purpose of contesting the election from Shiggaon Constituency itself though the oath taken there was out of time. It is clear from the aforesaid decision that, if a candidate has filed his nomination paper in one Constituency and has taken the oath before the concerned authority; subsequent thereto, that would suffice and hold good for the purpose of qualifying himself to contest from any other constituency. It is not as if the oath should be after the filing of the nomination paper from all the constituencies. If one oath is taken under Art. 173 of the Constitution, in one constituency, after the nomination paper is filed in that constituency, that would suffice. In this case, the petitioner had filed his nomination paper in Davanagere on 27-10-1994 and thereafter, he had taken an oath under Art. 173 of the Constitution before the concerned authority of that constituency on the same day. Accordingly, that would be sufficient compliance with Art. 173 and would qualify him to contest for the election from Channagiri Constituency where the scrutiny was only on 3-11-1994. In that view of the matter, I hold Issue No. 4 in favour of the petitioner.
20. Issue No. 5 : Now the question to be decided is as to whether in view of my findings on the other issues, the petitioner has made out a case for holding that the nomination paper has been improperly rejected by the Returning Officer, Channagiri. As stated earlier, the Returning Officer has rejected the nomination paper on the ground that the petitioner did not subscribe to the oath or affirmation under Art. 173 of the Constitution of India in time, I have already held that the oath taken by the petitioner before the Assistant Returning Officer, Channagiri at 10-55 a.m. on 3-11-1994 would not be sufficient to qualify him to contest for the election. I have also held that the petitioner never brought to the notice of the Returning Officer the fact of his having taken oath at Dayanagere as evidenced by Ex. P.1.
21. It is contended by the learned counsel for the petitioner that even if he had not brought to the notice of the Returning Officer, Channagiri, the fact of his having taken a valid oath or affirmation at Davanagere, he is entitle to bring that fact to the notice of the Court while trying the Election Petition and satisfy the Court that he was qualified on the date of scrutiny of nomination papers as provided under S. 36(2)(a) of the Representation of the People Act. In other words, it was contended by him that the enquiry by the Returning Officer contemplated under S. 36 of the Representation of the People Act is only summary in nature and that he is entitled to urge any new ground or place any new materials to prove to the satisfaction of the Court that the rejection of his nomination paper was improper. He contended that, in spite of his not bringing to the notice of the Returning Officer, Ex. P.1 Certificate or the fact he had taken an oath at Davanagere, he is entitled to urge that ground before this Court or to adduce evidence to the effect that he was qualified on the date of scrutiny. On the other hand, learned counsel for the respondent contended that the question as to whether the rejection of the nomination paper was improper or not has to be considered on the basis of the materials available before the Returning Officer and that no new ground can be raised before the Court to prove that he was qualified as mentioned in S. 36 of the Representation of the People Act. It is his contention that on the basis of the available mmaterials before the Returning Officer, he was justified in rejecting the nomination paper and this Court has no power or jurisdiction to set aside the election. It is also contended by him that the case of the petitioner that he had already taken oath at Davanagere is a new ground in support of his case that he is qualified which was not raised by him before the Returning Officer. According to him, it is not as if the petitioner wants to adduce new materials on the question already raised before the Returning Officer, but he is raising entirely a new ground which the Returning Officer had no oppotunity to consider and in these circumstances, the petitioner is not entitled to rely on his affirmation at Davanagere in support of his case that he is qualified on the date of the scrutiny.
22. This aspect of the matter has been considered by Their Lordships of the Supreme Court in two decisions, viz., N.T. Veluswami Thevar v. G. Raja Nainar and Birad Mal Singhvi v. Anand Purohit . In Veluswami Thevar's case, a Voter filed E.P. No. 109/57 praying that the election of the appellant be declared void on the ground that the rejection of the nomination paper of one Arunachalam was improper, because he had ceased to be a Head Master at the time of his nomination, and that further the institution was a private one. In that case, the appellant had filed a written statement, in which, he pleaded that, Arunchalam was not qualified to be chosen not merely on the ground put forward before the Returning Officer but also on the ground that he was interested as a partner in contracts for the execution of works for the Government, and that further he had entered into an agreement with the District Board, Chittor, to serve as a teacher in that Board, and that his nomination paper was therefore rightly rejected. The respondent, before the Supreme Court, then filed an application to strike out the additional grounds of disqualification raised in the written statement of the appellant on the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification which was not taken before the returning officer, and that accordingly the new grounds put forward by the appellant should be struck out. The Election Tribunal by its order dated 17-8-1957, dismissed the application holding that it could go into grounds other than those which were put forward before the Returning Officer. The correctness of this order was challenged before the Madras High Court, wherein, the contention was repeated that it was not competent to the Tribunal to enquire into any other grounds which have not been put forward before the Returning Officer and accordingly, to quash the order of the Tribunal. That Writ Petitionwas allowed by a Division Bench of the Madras High Court on the ground that the Tribunal had no jurisdiction to investigate the truth or validity of the objections which were not put forward before the Returning Officer and which he had therefore no occasion to consider. Against the decision of the Madras High Court, the matter was taken in Appeal before the Supreme Court.
23. The Supreme Court considered the ambit of the expression "improperly rejected" in S. 100(1)(c) of the Representation of the People Act in the light of S. 36 of the Act and held :
"It is a sound rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. Reading S. 100(1)(c) in the context of the whole enactment, we think that an enquiry before the Tribunal must embrace all the matters as to qualification and disqualification mentioned in S. 36(2), and that it cannot be limited to the particular ground of disqualification which was taken before the returning officer."
Again in paragraph 9, Their Lordships observed:
"The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises a question under S. 100(1)(c) is not in the nature of an appeal against the decision of the returning officer. An election petition is an original proceeding instituted by the presentation of a petition under S. 81 of the Act. The respondents have a right to file written statements by way of reply to it; issues have to be framed, and subject to the provisions of the Act, the provisions of the Civil Procedure Code regulate the trial of the petition. All the parties have the right to -adduce evidence, and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal. That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings; that is, it is open to a party, to put forward all grounds in support of or in negation of the claim, subject only to such limitations as may be found in the Act."
Again in paragraph 10, Their Lordships observed:
"The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100(1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returning officer."
It is again observed by Their Lordships in paragraph 13 thus :
"Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in S. 36(2)."
24. Finally, it is pertinent to note the observation made by Their Lordships in paragraph 14 of the same judgment to the following effect:
"It remains to deal with one more contention advanced on behalf of the respondent, and that is based on the following observa- tions in Hari Vishnu Kamath v. Ahmad Ishaque, :
"Under this provision (R.47(4)), the Tribunal is constituted a Court of appeal against the decision of the Returning Officer, and as such its jurisdiction must be coextensive with that of the Returning Officer and cannot extend further."
The argument is that if the jurisdiction of the Tribunal is co-extensive with that of the returning officer, then the enquiry before it must be confined to the grounds which were . urged before the returning officer. Now, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry " under S. 100(1)(c), the question still remains, what is the jurisdiction of the returning officer in hearing objections to nomination papers? His jurisdiction is defined in S. 36(2), and the Tribunal must therefore have jurisdiction to decide all the questions which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised."
25. It is clear from the above decision that the jurisdiction or power of the High Court while trying an election petition is not confined to the ground raised before the Returning Officer and the Court is entitled to consider any ground in support of the petitioner's case that his nomination paper was improperly rejected even if it were not raised before the Returning Officer. It is also pertinent to note that at the relevant time, Election Petitions were being tried by the Tribunal and in that context, the word "Tribunal" is used in the judgment,
26. In Birad Mal Singhvi v. Anand Purohit , the question that arose was as to whether the rejection of the nomination papers of Hukmichand and Suraj Prakash Joshi were proper or not. The question that arose for consideration in that case was whether they had completed the age of 25 years for qualifying themselves to contest for the election as provided for under Art. 173 of the Constitution of India. In the nomination paper, Hukmichand had given a declaration that he is completed 26 years of age while Suraj Prakash Joshi had declared in his nomination paper that he had completed 25 years of age. No objection was raised against their nomination by any party and none appeared on behalf of the aforesaid candidates, but the Returning Officer found that, according to the entries in the Electoral Roll, Hukmichand was only 23 years and Suraj Prakash Joshi was only 22 years. On the basis of the entries contained in the Electoral roll, the Returning Officer held that the two candidates did not possess requisite qualification of age as required under Art. 173 of the Constitution of India to contest the election and accordingly, rejected both the nomination papers. The question for consideration before the Supreme Court was as to the correctness of the rejection of the nomination papers on the ground that they were under-aged. The Supreme Court held, in the absence of any material before the Returning Officer, the Returning Officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. In other words, their Lordships held that the rejection of the nomination papers by the Returning Officer is not improper. But in spite of that, their Lordships held that the decision of the Returning Officer is not final and that in an election petition, it is open to the petitioner to lead evidence in regard to the question as to whether the candidates had attained the age of 25 years on the relevant date or not: In that context, their Lordships observed as follows:
"In the absence of any material before the returning officer, the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them. But his decision is not final. In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date. It is open to the High Court to take a final decision in the matter notwithstanding the order of the returning officer rejecting the nomination paper. If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore, it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding. In the instant case it was open to the respondent election petitioner to place material before the High Court to show that the two candidates were qualified and their nomination paper was improperly rejected."
27. It is also relevant to that this was a case where Their Lordships were considering qualification under Art. 173 of the Constitution of India, in regard to the age, whereas, in this case, we are concerned with the qualification under the very same article by subscribing an oath as provided therein.
28. In the light of the above two decisions it is clear that this Court is not precluded from considering any other ground or any fresh material in deciding the question as to whether the Returning Officer improperly rejected the nomination paper or not. The petitioner is entitled to raise any fresh ground or produce any fresh material to prove the fact that his nomination paper was improperly rejected. The question to be considered by the Returning Officer was as to whether the petitioner was qualified on the date of the scrutiny under Art. 173 of the Constitution of India. The petitioner is entitled to place any material before this Court to show that he was qualified on that date. I do not think that his reliance on the oath taken at Davanagere is a new ground but it is only a fact to prove that he was qualified on the date of scrutiny. Even assuming that it is a new ground, he is entitled to raise the same before this Court in the light of the two decisions referred to above. In that view of the matter, the petitioner is certainly entitled to rely on the fact that he had already taken an oath at Davanagere before the date of scrutiny at Channagidi which would qualify him under Art. 173 of the Constitution of India and this Court is bound to consider that fact while considering the question as to whether the rejection of the nomination paper was improper or not. The fact that the peiitioner did not bring this fact to the notice of the Returning Officer will not disentitle him to rely on that fact before this Court.
29. I have already held that the petitioner subscribed an oath or affirmation under Art. 173 of the Constitution at Devanagere on 27-10-1994 before the date of scrutiny at Channagiri on 3-11-1994. I have also held that the above oath subscribed at Davanagere would qualify him for contesting the election from Channagiri constituency. If that be so, the petitioner was qualified under Art. 173 of the Constitution to contest the election from Channagiri Constituency and the rejection of the nomination paper of the petitioner was improper. This issue is found in favour of the petitioner.
30. Issue No. 6: Under S. 100(1)(c) of the Representation of the People Act, if this Court is of the opinion that any nomination has been improperly rejected, this Court shall declare the election of the returned candidate to be void. As I have held that the nomination of the petitioner was improperly rejected by the Returning Officer, the election of the respondent Sri. J. H. Patel has to be declared void and I do so. This issue is accordingly found in favour of the petitioner.
31. Issue No. 7 ; In the light of the above findings the petition has to be allowed. The respondent was returned with a good majority of votes. His election is being declared void for no fault of his. If the petitioner had brought the fact of his having taken an oath at Devenagere to the notice of the Returning Officer, the position might have been perhaps different. The petitioner himself is responsible for this imbroglio. The respondent is not in any way responsible. In these circumstances this is a fit case where the parties must be directed to bear their own costs.
32. In the result, I allow this petition and declare the Election of Respondent Sri. J. H. Patel from 158-Channagiri Legislative Assembly Constituency of 10th Karnataka Legislative Assembly General Election as void. The parties are directed to bear their own costs.
33. Communicate this order to the concerned authorities as provided for in S. 103 of the Representation of the People Act, 1951.
34. Immediately after the pronouncement of the judgment, the respondent filed an application for stay of the operation of the judgment for four weeks. Learned counsel for the Election Petitioner vehemently opposed the same. In the circumstances of the case, in order to enable the respondent to file an appeal before the Supreme Court, which is a statutory right for him, I stay the operation of the judgment for a period of four weeks from today, as prayed for.
ORDER
35. This Election petition is filed by the petitioner under S. 81 of the Representation of the People Act, 1951, challenging the validity of the Election of respondent No. 1 held on 26-11-1994 in respect of 158 Channagiri Assembly Constituency to the Karnataka Legislative Assembly General Election and praying that this Hon'ble Court may be pleased to:
(1) Declare that the declaration that the Election of first respondent as void on ground of S. 100(1)(c) of the Representation of the People Act, 1951, in respect of 158 --Channagiri Legislative Assembly Constituency of 10th Karnataka Legislative Assembly General Election; and (2) Order re-poll to the Constituency and pass such other order as deems fit to grant under the circumstances of the case, in the interest of justice and equity.
(3) Declare that the order dated 3-11-1994 rejecting the nomination of the petitioner is illegal and void.
36. This Election Petition coming on for evidence between 21-8-1995 and 22-12-1995 and for hearing and for pronouncement of judgment on the 3rd day of January, 1996 in the presence of Sri. M. P. Eshwarappa, Sr. Advocate and Sri. K. G. Nayaka, Advocate for petitioner and Sri. G. V. Shantharaju Sr. Advocate and Sri. Nanjunda Reddy for respondent No. 1, respondents Nos. 2 and 3 having been deleted, and for the reasons stated in the judgment and while allowing this Election Petition, it is ordered and decreed that the election of respondent No. 1 from 158-- Channagiri Legislative Assembly Constituency of 10th Karnataka Legislative Assembly General Election, held on 26-11- 1994 be and the same is hereby declared 'as void.
And it is further ordered and decreed that the parties to been their own costs.
Given under my hand and seal of this Court, this the 3rd day of January, 1996.
37. Order accordingly.