S.C. Mohapatra, J.
1. Kuchinda Assembly Constituency is a single-member reserved Constituency for the Orissa State Legislative 'Assembly (in short 'the Assembly'). During the general elections to the Assembly held in the month of Mar. 1985, the petitioner filed four nomination papers for being elected from this Constituency. The respondent and two others also filed their respective nomination papers. At the time of scrutiny on 9-3-1985, the Returning Officer rejected the nomination papers of the petitioner on the ground that the petitioner was not qualified under Article 173(a) of the Constitution to be chosen to fill up a seat in the State Legislature since he did not take oath after filing of the nomination papers. The nomination papers of the two other candidates having been rejected on scrutiny, the respondent was declared elected uncontested. Petitioner has filed this petition to declare the election of the respondent void under Section 100(1)(c) of the Representation of the People Act, 1951 (in short 'the Act') on the ground of improper rejection of his nomination papers.
2. The simple case of the petitioner is that he made the oath before the Assistant Returning Officer at the time of filing of the nomination papers. The respondent resisted the petition both on facts and law.
3. On the pleadings, the following issues wore framed : --
1) Whether under law oath/affirmation is to be made before filing of the nomination papers?
2) Whether the oath/affirmation was taken prior to the filing of the nomination papers?
3) Whether the Election Petition is maintainable for non-joinder of necessary parties?
Issue No. 1 : --
4. The Returning Officer may reject the nomination paper of a candidate at the time of scrutiny in case on the date fixed for scrutiny, the candidate is not qualified for being chosen to fill the seat under Article 173 of the Constitution. Article 173(a) provides amongst other that a person shall not be qualified unless he takes oath according to the form set out in the Third Schedule. It reads as follows : --
"173.-- Qualification of membership of the State Legislature.--
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 authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) & (c) .. ..
In the Form a person taking oath or subscribing affirmation is to make a declaration that he is taking the oath 'having been nominated as a candidate". Therefore, the answer to this Issue would depend upon the meaning of the words "having been nominated". Form VII- A in the Third Schedule of the Constitution reads as follows :--
"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 India as by law established and that I will uphold the sovereignty and integrity of India."
Therefore, on the date of scrutiny to avoid the disqualification under Article 173(a), the person nominated to be a candidate ought to have taken the oath in Form VII-A in the Third Schedule of the Constitution.
5. The requirement to take oath was provided in the Constitution by the Constitution (Sixteenth Amendment) Act, 1963. Immediately thereafter the Returning Officer and the Assistant Returning Officer were authorised by the Election Commission before whom the oath can be taken. Election Commission issued Notification No. 3/6/68(1) dated 18-3-1968 superseding the earlier Notification by which apart from the Returning Officer and the Assistant Returning Officer, other persons were also authorised before whom oath can be taken by the candidate.
6. Objections to the validity of the nomination papers on account of defective oath were the subject-matter of judicial scrutiny in the past. In AIR 1968 SC 1064 (Pashupati Nath Singh v. Harihar Prasad Singh), the words in Form VII-A "having been nominated" were given importance and it has been observed : --
"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....."
Disapproving the view of the Patna High Court in the decision reported in (1966) 28 ELR 250 (Shiva Shankar Kanodia v. Kapildeo Narain Singh) that oath can be taken even after a candidate is validly nominated as provided under Section 36(8) of the Act and affirming the decision reported in (1968) 31 ELR 155 (Pat), (Pashupati Nath Singh v. Harihar Prasad Singh), it has been observed : --
".....The form of oath does not say 'having been validly nominated' but only 'having been nominated.'"
In AIR 1966 Madh Pra 255 (Hariramsingh v. Kamtaprasad Sharma), it has been held : --
".....It is the presentation of the nomination papers under Section 33 which creates an occasion for the making of the oath or affirmation in terms of Article 173 of the Constitution....."
In AIR 1968 Mys 18 (Khaje Khanavar Khadskhan Hussainkhan v. Siddavanhalli Nijalingappa) it was observed :
".....no one becomes a candidate for election until the nomination reaches the Returning Officer : prior thereto, he is for the purposes of law described only as a prospective candidate, i.e. a person who with the election in prospect holds himself out as a candidate."
The view of this decision that oath can be taken on the date of scrutiny was not approved by the Supreme Court in appeal in the decision reported in AIR 1969 SC 1034 (Khaje Khanavar Khadskhan Hussain Khan v. Siddavanahalli Nijalingappa) where it was categorically observed : --
".....In the High Court, that affirmation was challenged solely on the ground that it should have been made prior to the filing of the nomination paper; and that ground, of course, had no force, because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the nomination paper has been filed....."
6A. The recent decision of the Madhya Pradesh High Court reported in 61 ELR 145 (Ramlakhan Singh v. Shriniwas Tiwari) is also to the same effect.
7. Thus, the legal position is clear that the oath or affirmation is to be made or subscribed after filing of the nomination paper before the authorised officer. In view of the various persons authorised by the Election Commission in the Notification dt. 18-3-1968, as required under Article 173, the oath or affirmation can be made or subscribed before any of the authorities mentioned therein. The oath taken earlier to the presentation of nomination paper to the Returning Officer under Section 33 of the Act is invalid and does not protect a person from the disqualification under Article 173(a) of the Constitution. This issue is answered accordingly.
Issue No. 2 : --
8. The petitioner pleaded that he presented four nomination papers along with the oath Form duly signed at about 12.30 p.m. on 8-2-1985 to the Assistant Returning Officer who was authorised to receive the nomination papers. The Assistant Returning Officer verified the same for about 20 minutes and then endorsed his signature and put the date and time in acknowledgment of receiving the nomination papers. Simultaneously, the petitioner was asked by the Assistant Returning Officer to take oath and after the petitioner took oath, the Assistant Returning Officer endorsed his signature and date on the oath Form. It is stated that the time of receipt of the nomination paper being endorsed as 12.53 p.m. the Assistant Returning Officer ought to have put that time on the oath Form instead of 12 noon. This assertion has been denied by the respondent in his written statement. The Returning Officer has relied upon the times endorsed in the nomination paper and on the oath taken in the Form and the time of taking the oath having been endorsed as 12 noon, he rejected the nomination papers of the petitioner as the oath was taken earlier to the presentation of the nomination paper. Therefore, it is to be examined if the oath was taken at the time endorsed in the oath Form by the Assistant Returning Officer or at about 12.53 p.m. simultaneously with the presentation of the nomination papers as claimed by the petitioner.
9. Petitioner examined himself as P.W. 3 and reiterated his stand. He examined one of his proposers as P.W. 4 who claimed in his deposition to be present both at the time of presentation of the nomination paper along with the petitioner and at the time of scrutiny. The oath taken by the petitioner is in Oriya. It is the verbatim translation of Annexure X of the Hand Book for Returning Officers issued by the Election Commission. The first portion of the Form of oath or affirmation is the same as Form No. VII-A in the Third Schedule of the Constitution. Below the same, instruction has been embodied to score out the portion which would not be applicable. Thereunder, the endorsement to be given by the authorised person has been put. Below the endorsement of the authorised person, it is indicated that there would be perforation and under the perforated mark a certificate for receipt of the Form of oath has been provided for to be signed and issued by the authorised person. The Election Commission in para 8(1) of Chap. V of the Hand Book for Returning Officers has instructed that the authorised person immediately after endorsement will give a certificate to the candidate that he has made and subscribed the oath before him on that day at a particular hour. The certificate will be given to the candidate without his applying for it, which would avoid all controversies on the question of oath later on. In his examination-in-chief, the petitioner, who was examined as P.W. 3, did not mention anything about the certificate. In cross-examination he replied that the Assistant Returning Officer did not give the petitioner any certificate. P.W. 4, who was one of the proposers for nomination of the petitioner as a candidate, claimed that he was present with the petitioner when his nomination papers were presented to the Assistant Returning Officer and also at the time of scrutiny. In cross-examination he admitted that before making the statement in Court nowhere else he stated the time of receipt of the nomination papers or of taking oath. He stated that one lawyer was engaged by the petitioner at the time of scrutiny by the Returning Officer. The order of the Returning Officer (Ext. 5) also indicates that the Returning Officer heard the learned counsel who submitted before him that although oath was taken at 12 noon, the nomination paper should not be rejected on the ground of not observing the procedure of subscribing oath. Petitioner has not preferred to examine his lawyer to deny that he did not make any such submission. P.W. 2, the Assistant Returning Officer, stated that the petitioner signed the oath Form in his presence and he has put the correct time in the oath Form. The time of endorsement of oath in the Form by the petitioner in Ext. 3 is indicated to be 12 noon. When examined in Court, he was not able to remember the time of receipt of nomination papers of the other two candidates. This would indicate that his statements made as to time are of no value. P.W. 1, the Returning Officer, was very emphatic in his statement in answer to my question that all the contentions raised by the learned counsel for the petitioner were recorded and no other contention had been raised by the learned counsel.
From the aforesaid discussions, the following salient features emerge :--
(i) In Form VII-A (Ext. 3) the Assistant Returning Officer has made the endorsement to the effect that the petitioner took oath at 12 noon;
(ii) P.W. 4, a party-man and follower of the petitioner, who is also a proposer of the petitioner in one of the nomination forms, was silent and did not state even at the time of scrutiny where he claimed to be present that the time recorded in the oath Form was not correct though the only ground on which the nomination paper was rejected was that the petitioner took oath before he presented the nomination paper; and
(iii) the Advocate for the petitioner has not been examined as a witness to assail the statement in the order (Ext. 3) that he made a submission accepting 12 noon to be the time of taking the oath.
These salient features lead me to the irresistible conclusion that the petitioner took oath at 12 noon which has been correctly recorded in Ext. 3.
Issue No. 3 : --
10. Non-joinder of necessary parties is raised to be a defect in the Election Petition. The petitioner has not claimed for the further declaration that any other candidate has been duly elected. Accordingly, the returned candidate whose election is claimed to be void is the only necessary party. The petition is maintainable with the returned candidate only as respondent.
11. In view of my finding on Issue No. 1 that oath is to be taken after filing of the nomination paper and before the date fixed for scrutiny to get rid of the disqualification under Article 173(a) of the Constitution and the further finding on Issue No. 2 that oath was taken at 12 noon on 8-2-1985 before the nomination papers were filed, the Returning Officer was justified in rejecting the nomination papers of the petitioner and there was no improper rejection of the same to declare the election of the respondent void.
12. In the result, the election petition has no merit which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 200/- (two hundred). The other costs are to be assessed by the office.