# AND OTHERS v. SIDDAV ANBALLI NUALINGAPPA & ANR

- **Citation:** [1969] 3 S.C.R. 524
- **Court:** Supreme Court of India
- **Decided:** 1969-02-04
- **Bench:** J. M. Shelat, V. Bhargaya, C. A. Vad>Ialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-others-v-siddav-anballi-nualingappa-anr-4610
- **Pages:** 24

## Headnote

Constitution ,.Jf India, 1950, Art. 173(a)-Making oath or affirmation-When should be made.
Practice and Procedure-Representation of the People Act. ( 43 of
1951). s. 116A-Appea/-Taking new points-Code of Civil Procedure
(Act 5 of 1908), O. 16, r. 14-Duty of Court to su1n111on court witnesses.
Notification by Election Com1nissioner under Art. 113(a)-Requirenient of making oath or affinnation before con1petent officer 'of that cons1ituency'-Scope of.
·
The first respondent, who was the Chief Minister of the State, and the
first appellant were candidates for election
to the Mysore Legislative
Assembly from Shiggaon constituency.
The notification fixing the timeschedule "for the elections fixed 20th January 1967, as the last date for
filing nominations, 21st as the date of scrutiny, and 23rd as the last date
for withdrawal of candidature. The first respondent, had also filed
his
nomination at two other places, Bagalkot and Hospet, and validly made
the affirmations required by Art. 173(a) of the Constitution, at those plaoes
on the 19th and 20th January.
He also made the affirmation before the
Returning Officer of the Shiggaon constitUency on
the date of scrutiny)
that is, 21st January. The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidate;, including the fin;t appellant, had withdrawn their candidature. The first appellant challenged the first respondent's election on the grounds that the first
respondent was disqualified for 'failure to make the affirmation under Art.
173(a) before filing the nomination paper in Shiggaon constituency, that
the withdrawal from candidature of the first appellant was attempted to be
obtained by inducement, threats and undue inftuence and was in fact pro-.
cured with the connivance of the Returning Officer,
and
that the first
respondent committed other irregularities in the filing of his nomination.
It was alleged that one P was responsible for the corrupt practices with
the consent of the first respondent.
P was not examined as a witness by
the respondents. The first appellant filed an application to examine P as
a court-witness. on the ground that the appellant cOuld not examiite him
as his own witness since he would be hostile to the appellant. The High
Court rejected the application.
·
The High Court, a'fter rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held
that the affirmation made prior to scrutinY was sufficient comp,iance with
the requirements of Art. 173(a}, and that the charges of corrupt practice
of undue influence and •bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irreguta·rities, were not proved.
•
In appeal to this Court. it was contended that :
(I) This Court. in
Paslmoati Nath Singh v. Harihar Prasad Singh, A.I.R. 1968 S.C. 1064,
held that the affirmation should be made lief ore the date of scrutiny, so
that, in the present case, it should have been made at the latest by the midc
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HUSSAIN KHAN V, NIJALINGAPPA
525
night between 20th and 21st January; and (2) On the failure of the first
respondent to examine P an adve-rse inference should have been drawn
against the first respondent, and that the High Court erred in not summoning P as a court-witness.
HELD : ( 1) (a) Since the first appellant was permitted to raise the
new gromd based upon the decision in Pashupatl Nath Singh's case, the
first respondent should not be debarred from putting forward his alternative plea that Art. 173(a) wu satisfied on the basis of the affirmations
made at Bagalkot and Hospet.
[532 E-F]
(b) The notification issued by the Election Commission in pursuance
of Art. 173(a) stated that the affirmation should be made before
the
Returning Ofticer or &sistant Returning Officer for that constituency. In
Uling the expression 'that constituency', the intention of the Election Commiuion

## Text

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KHAJE KHANAVAR KHADERKHAN JIUSSAJN KHAN
A
AND OTHERS
v.
SIDDAV ANBALLI NUALINGAPPA & ANR.
February 4, 1969
(J. M. SHELAT, V. BHARGAYA AND C. A. VAD>IALINGAM, JJ.]
Constitution ,.Jf India, 1950, Art. 173(a)-Making oath or affirmation-When should be made.
Practice and Procedure-Representation of the People Act. ( 43 of
1951). s. 116A-Appea/-Taking new points-Code of Civil Procedure
(Act 5 of 1908), O. 16, r. 14-Duty of Court to su1n111on court witnesses.
Notification by Election Com1nissioner under Art. 113(a)-Requirenient of making oath or affinnation before con1petent officer 'of that cons1ituency'-Scope of.
·
The first respondent, who was the Chief Minister of the State, and the
first appellant were candidates for election
to the Mysore Legislative
Assembly from Shiggaon constituency.
The notification fixing the timeschedule "for the elections fixed 20th January 1967, as the last date for
filing nominations, 21st as the date of scrutiny, and 23rd as the last date
for withdrawal of candidature. The first respondent, had also filed
his
nomination at two other places, Bagalkot and Hospet, and validly made
the affirmations required by Art. 173(a) of the Constitution, at those plaoes
on the 19th and 20th January.
He also made the affirmation before the
Returning Officer of the Shiggaon constitUency on
the date of scrutiny)
that is, 21st January. The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidate;, including the fin;t appellant, had withdrawn their candidature. The first appellant challenged the first respondent's election on the grounds that the first
respondent was disqualified for 'failure to make the affirmation under Art.
173(a) before filing the nomination paper in Shiggaon constituency, that
the withdrawal from candidature of the first appellant was attempted to be
obtained by inducement, threats and undue inftuence and was in fact pro-.
cured with the connivance of the Returning Officer,
and
that the first
respondent committed other irregularities in the filing of his nomination.
It was alleged that one P was responsible for the corrupt practices with
the consent of the first respondent.
P was not examined as a witness by
the respondents. The first appellant filed an application to examine P as
a court-witness. on the ground that the appellant cOuld not examiite him
as his own witness since he would be hostile to the appellant. The High
Court rejected the application.
·
The High Court, a'fter rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held
that the affirmation made prior to scrutinY was sufficient comp,iance with
the requirements of Art. 173(a}, and that the charges of corrupt practice
of undue influence and •bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irreguta·rities, were not proved.
•
In appeal to this Court. it was contended that :
(I) This Court. in
Paslmoati Nath Singh v. Harihar Prasad Singh, A.I.R. 1968 S.C. 1064,
held that the affirmation should be made lief ore the date of scrutiny, so
that, in the present case, it should have been made at the latest by the midc
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HUSSAIN KHAN V, NIJALINGAPPA
525
night between 20th and 21st January; and (2) On the failure of the first
respondent to examine P an adve-rse inference should have been drawn
against the first respondent, and that the High Court erred in not summoning P as a court-witness.
HELD : ( 1) (a) Since the first appellant was permitted to raise the
new gromd based upon the decision in Pashupatl Nath Singh's case, the
first respondent should not be debarred from putting forward his alternative plea that Art. 173(a) wu satisfied on the basis of the affirmations
made at Bagalkot and Hospet.
[532 E-F]
(b) The notification issued by the Election Commission in pursuance
of Art. 173(a) stated that the affirmation should be made before
the
Returning Ofticer or &sistant Returning Officer for that constituency. In
Uling the expression 'that constituency', the intention of the Election Commiuion was that the affirmation must be made before the Returning Officer or Assistant Returning Oflicer of that particular constituency
from
which the candidate was seeking election to the Legislature of the State,
whether it be an Assembly Constituency or a
Council
Constituency.
[534 A-BJ
(c) When the first respondent made bis affirmations on the 19th and
20th before the Returning Officer at Bagalkot and Hospct respectively.
he was a candidate nominated for election
from
those
constituencies.
Once he made such an affirmation before one of the persons authorised
by the Election Commission he had fully complied with the requirements
of Art. 173(a), and thereupon, became qualified to be a candidate for
election to the Mysore Legislative Assembly.
[534 C-E]
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 be<.1r true faith and allegiance to the Constitution as by law established and undertake to uphol<l
the sovereignty and integrity of India, and, to ensure this, he must make
an oath or affirmation. The Article require..;;; 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 <1f the State. The Article does not mention that
the making of oath or lffirmation is to be preliminary to the validity of
candidature in each constituency, and the Article does not require that the
qualification must be acquired •!'l'arately in respect of each cowtituency
from which a candidate was seeking election. Once the oath or affirmation is made before a competent authority in respect of one constituency,
the candidate becomes bound by that oath or affirmation even if he gets
elected to the Legislature from a different constituency [534 E-H; 535
A-BJ
(2) In the present case, the circumstantisJ evidence indicated that the
version put forward on behalf of the appellants could not be true. Therefore, the High Court wu justified in holding that the appellants' case was
shown to be false by other evidence, so that, there was no compelling reason
for the High Court to examine P as a court-witness or to draw an adverse
hiference against first respondent. for his failure to examine P as a witness.
[540 G-H; 541 AJ
Dr. M. Chenna Reddy v. V. Ramochandra Rao, C.A. No. 1449/68
dt. 17-12-1968, R. M. Seshadri v. G. Vasantha Pai, [1969J 2 S.C.R. 1019
and Nani Gopal Swami v. Abdul Hamid Chowdhury, A.l.R. 1959 Assam
200, referred to.
ClvIL APPELLATE JURISDICTION: Civil Appeal No. 1621 of
1967.
8Sup, Cl/69~ IS
526
SUPREME COURT REPORTS
[1969]3 S.C.R.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated August 4, 7, 8,
1967 of the Mysore High Court in Election Petition No. 2 of
1967.
.
B. S. Patel, S. Paramila and R. B. Datar, for the ~ppellants.
A
A. K. Sen, S. S. Jara/i and M.
Veerappa, for respondent
H
No. I.
Shyamala Papp11 and S. P. Nayar, for respondent No. 2.
The Judgment of ihe Court was delivered by
Bhargava, J.
This appeal under section 1l6A of th~
Representation of the People's Act, I 951 (hereinafter referred to
as "the Act") has been filed by two appellants whose election
petition for setting aside the election of respondent No. 1 has been
dismissed by the High Court of Mysore.
Appellant No. 1 was
one of the candidates who filed his nomination for election to the
Mysore Legislative Assembly from Shiggaon Constituency in the
District of Dharwar. Appellant No. 2 was a voter in that constituency.
The notification fixing the time-schedule for the elections was issned on the 13th January, 1967, fixing 20th January.
1967 as the last date for filing nominations, 21st January, 1967
as the date of scrutiny, and 23rd January, 1967 as the last dat~
for withdrawal of candidature. According to the appellants, only
eight candidates filed their nominations within time up to 20th
January, 1967. One of them was appellant No. 1.
Respondent
~o. 1 was not included amongst the seven other candidates and
his nomination paper was subsequently introduced amongst the
records of the Returning Officer on behalf of respondent No. 1
with the aid of the Returning Officer. The Returning Officer is
respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition alsp. It was further pleaded
that, even if any nomination paper was filed by respondent No. l.
it was not accompanied by the relevant portion of the electoral
roll in which the name of respondent No. 1 appeared as a voter
which was necessary, because respondent No. · 1 was not a voter
in this constituency, but in a different constituency. No deposit
as required by s. 34 of the Act was made in time; and, further still.
respondent No. 1 was not qualified to be chosen to fill the seat in
the Legislature, because he had not made and subscribed before
the person authorised in that behalf by the Election Commission
an oath or affirmation according to the form set out for the purpo.,e in the Third Schedule to the Constitution as required by
Article 173 (a).
Tt was alleged that. despite all these defect<.
respondent No. 1 was declared elected unopposed on the date of
scrutiny on the incorrect ground that all other candidates had
withdrawn their candidature. The appellants accepted the
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527
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genuineness and validity of the withdrawals by the seven other
Eandidates, leaving appellant No. 1 as the sole contesting candidate.
The further case was that, in order to have respondent
No. 1 returned unopposed, corrupt practices were committed to
obtain a withdiawal fonn signed by appellant No. 1 and it was
filed illegally before the Returning Officer.
B
The version relating to the commission of corrupt practices
and to the filing of the withdrawal fonns of appellant No. 1 ma)'
now be stated. The appellants allege that the whole manoeuvring
was done by one Patil Puttappa, Member of Parliament, who was
a staunch supporter of respondent No. 1, and by Mahalinga
Shetty, the son-in-law of respondent No. 1: These two persons
c caught hold of two other persons, Hotti Peerasabnavar Chamensab
Ghudusab (hereinafter referred to as "P. W. 3"), and Nadaf Mohamad. Jafar Saheb (hereinafter referred to as "P. W. 4"), and through
thein, attempted to induce appellant No. 1 to withdraw his nomination by promising to get him a long-awaited huller licence and also
to ·get him better patronage for his book-selling business and for
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receiving other aid and support for his matepal prosperity. The
appellants allege that this inducement was offered without disclosing that respondent No.
l's candidature was spurious. For
this purpose,· on 20th January, 1967, at about 8.30 p.m., while
appellant No. 1 was sitting at th!' shop of one Joshi, a car arrived
from which P.W. 4. got down, came to appellant No. I and told
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him that Patil Puttappa was calling him an.d requesting him to
go with him.
Appellant No. 1 went with P. W. 4 towards the
car in which Patil Puttappa was sitting. The latter asked appellant
No. 1 why he should further' trouble himself with election matters
when he had enough work in c<;mnection with the shop, flour miII
and his garoen lands. He added that it will be to the advantage
of appellant No. 1 to withdraw his nomination, promising that
F he would assist him in his trade, get him an agency for paper and
would help him to secure a licence for his huller which, he said,
he had heard he was trying to obtain without success. Appellant
No. 1 replied that he had filed his nomination with a view to
contest the elections as his candidature· had been sponsored by
many people and he was not willing to withdraw his nomination.
In spite of requests having been made two or three times, appellant
No. 1 refused. At a later stage, when he asked why he should
withdraw his nomination, Patil Puttappa told him that they desired
uncontested return of resPondent No. 1, and that was the reason
why they were making that request.
Appellant No. I
then
objected saying that resJ)Ondent No. I had not filed his nomination.
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whereuoon Patil Puttappa stated that every necessary arrangement
would be made to secure the uncontested return of respondent
No. 1. At the time of this talk, Mahalinga Shettv was also sittinrr
in the car. When appellant No. I continued to be hesitant, Patil
Puttapim asked him to go with him in the car and, in · this
528
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[1969] 3 S.C.R.
suggestion, P. Ws. 3 and +supported him. Appellant No. 1 first
declined to do so because he was not prepared to accede to the
request for withdrawing his nomination, but, on Patil Puttappa's
persistence, he agreed to go along, provided appellant No. 2 also.
accompanied him. Appellant No. 1 then went to the shop bf
appellant No. 2 and, thereafter, both of them got into the car and
were taken to the house of one Hanumanthagouda Ayyangouda
Patil (hereinafter referred to as "R. W. 3"). Patil
Puttappa,
Mahalinga Shelly and the two appellants all went inside the house
of R. W. 3 and sat there when Patil Puttappa once again made a
request to appellant No. l to withdraw his nomination. Appellant
No. 1 refused, while appellant No. 2 also supported him by stating ·
that appellant No. I had full support of the Muslims of the locality
and that there was every chance of his success, so that there was
no point in his withdrawing the nomination.
Thereafter, Patil
Puttappa changed his tactics and told appellant No. l that it would
neither be good nor safe for him to continue to refuse his request
and threatened him by asking whether he would like to go on with
the election or prefer to live in safely. He added that he was a
Member-· of Parliament and, therefore, he could do anything to
appe!lant No. l. He also produced a blank printed form and two
blank sheets of white paper and asked appellant No. I to sign
them, giving the threat that he will. not be allowed to go, unless
he affix~d hi,, signatures to them.
When a;ipcllant No. 1 looked
for support to appellant No. 2, the latter ·was
also
similarly
threatened, whereupon he said that there was no escape and, consequently. appellant No. 1 should sign the papers as desired by
Patil Puttappa. Against his will and submitting to the pressure of
Puttappa, appellant No.· 1 signed the papers which were taken
away by Puttappa who left asking R. W. 3 not to permit the two
appellants to go away, unless Puttappa himself told hini to let
them go. The two appellants, according to them, were kept confined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January,
1967. They were only allowed to leave the house at about
4-30 a.m. on 22nd January, 1967, when a servant of R. W. 3
woke them up and told them that they could go away. The charge
put forward on the basis of these facts was that an attempt was
made to bribe appellant No. I to withdraw his nomination by
offering him help in obtaining the licence for the huller and in
getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence.
lt was further plead'ed that that withdrawal form was filed before
the Returning Officer hy some one other than appellant No. 1 or
his election agent. The case put forward in the election petition,
thus, was that the withdrawal from candidature of appellant No. 1
was attempted to be obtained by offering inducements and by
subjecting him to threats and by exercise of undue influence in
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HUSSAIN KHAN V. NJJALJNGAPPA (Bhargava, l.)
529
which assistance of the Returning Officer was procured. In the
co=ission of these corrupt practices, there was
consent of
. re~pendent No. 1, so that the election of respondent No. 1 was
void. In order to prove the consent· of respondent No. 1 to the
commission of the corrupt practices, the case put forward was
that, subsequent to the alleged withdrawal of candidature by all
the other candidates including appellant No. 1, leaving respondent
No. 1 as the sole candidate, respondent No. 1 met P. Ws .. 3 and 4
and gave them an assurance that the promises which had already
been made to assist appellant No. 1 will be honoured.
The further version put forward on behalf of the appellants,
subsequent to. their release from the house of R. W. 3, is that, ..
when they came out of the house towards the Poona-Bangalore
Road, they felt ashamed to show their faces in their own town of
Shiggaon and, consequently, decided to gn. to Hubli for a few
days .. A truck happened to pass there carrying some goods and,
since they had some money, they took a lift in the truck and went
to H ubli.
They went to a ~apteen for· refreshm,ents and on the
table they found an issue of a newspaper 'Samyukta- Karnataka'
in which appeareii a news item stating that respondent No. 1 ·had
been returned uncontested at Shiggaon.
Appellant .No .. 1 felt
surprised, because he had. not withdrawn his nomination.
He
consulted appellant No. 2 and the two o! them, after thinking
over, realised that advantage must have been taken against them
of the papers which appellant No. 1 had been made to sign at the
house of R. W. 3. They, therefore, decided to see a lawyer and
selected Sadashiv Shankarappa Settar (hereinafter referred to as
'·P. W. 2") because, besides being a lawyer, he y;as also a candid~te b the election. They went to his house twice at about 9 a.m.
and again at about 12-30 or 1-00 p.m., but he was not at home.
They waited on the second occasion until about 2-30 p.in. when
he returned and, after taking his meals, he ultimately talked . to
them at 3 p.m. As a result of the consultation P. W. 2 drafted a
telegram which was despatched by the
appellants at
about
4-35 p.m. to the Returning Officer. In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that
he had withdrawn which was false as he had not withdrawn. and
the withdrawal form was not presented by him.
He added tliat
he did not know who had filled in the contents of the withdrawal
form and who had presented it and, consequently, ·wanted the
Returning Officer to treat it as invalid, adding that he was still
contesting the election . from the . Shiggaon constituency. The
Returning Officer .received it on the same evening, i.e., on 22nd
January, 1967. but noted on it that, since it was a telegram, it
could not be acted upon or considered.
Thereafter,
appellant
No. 1 addressed a meeting late at night in a locality called 'Durgada
Bailu' in .Hubli where election propaganda was going on.
After ·
taking further steps next day, the appellants continued to stay in
530
SUPREME COURT REPORTS
[1969] 3 S.C.R.
Hubli for 2 or 3 days and they ultimately returned to Shiggaon
on the 25th January, 1967.
On these pleadings, the case put
forward was that appellant No. 1 had never withdrawn his candidature and that, since respondent No. 1 had never filed his nomina·
tion paper and all other candidates had withdrawn, appellant
No. 1 was entitled to be Cleclared elected unopposed.
In the
election petition, therefore, in addition to the relief for declaration
of the election of respondent No. 1 as void, appellant No. 1 also
claimed a declaration that he was the duly elected candidate from
the Shiggaon constituency.
The point that was put in the fore-front by Mr. B. S. Patil,
learned counsel for the appellants, and was argued first relates
to the challenge of the validity of the election of respQ11dent
No. 1 on the ground that he was disqualified for failure to make
or subscribe an oath or affirmation in accordance with the provisions of Art. 173 (a) of the Constitution. In the election petition,
it was pleaded that the oath ot affirmation should have preceded
the filing of the nomination paper, so that, even if any oath or
affirmation was made subsequent to the filing of the nomination
paper, it would be invalid and would not avoid the disqualification.
On behalf of respondent No. 1, the reply in the written
statement was that respondent No. 1 did, in fact, make an affirmation before the Returning Officer of this very constituency of
Shiggaon on the date of the scrutiny, viz .. 21st January, 1967,
before the Returning Officer scrutinised the nomination paper of
respondent No. 1. Evidence was also led to show that, on 2 lst
January, 1967, respondent No. 1 did arrive at the office of the
Returning Officer just before the scrutiny of his nomination paper
was being taken up and he immediately proceeded to make the
affirmation. Prior to his arrival, his nomination paper for another
constituency Kunda.gaol was rejected by the Returning Officer on
the ground that no affirmation had been made and respondent
No. I was disqualified under Art. 173 (a) . It may be mentioned
that thls Returning Officer was functioning as such for three
different constituencies, Shiggaon,
Kundagol
and
Shirahatti,
though his Headquarters were temporarily located at Shiggaon.
Since the affirmation w:\s made before the Returning Officer by
respondent No. 1 prior to the scrutiny of his nontinatlon paper
for Shiggaon Constituency, the Returning Officer held that respon-.
dent No. 1 was not disqualified under Art. 173 (a:), and declared
his nomination as valid.
These facts were accepted by the High
Court in this case and the High Court upheld the view of the
Returning Officer tltat the affirmation made prior to the scrutiny
of his own nontination paper by respondent No, 1 was full
compliance with ,tlte requirements of Article 173 (a). The
High Court repelled the argument advanced on behalf of the
appellants that the affirmation should have been made before the
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531
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filing of the nomination paper. In ~
course of arguments on
this point before us, however, neither party stuck to the position
that was taken up by it before the High Court. On behalf of the
appellants, the alternative legal position relied upon was that, in
any case, the affirmation should have been made before the date
of scrutiny, so that, in the present case, it should have been latest
B
by the midnight between 20th and 21st January, 1967.
Thi&
plea for challenging the validity of the election of respondent
No. 1 was not taken either in the pleadings or even at any later stage
in the High Court. In fact, it was taken here for the first time
on the basis of a decision of this Court in Pashupati Nath Singh v.
Harihar Prasa4 Singh. (1 ) In that case, this Court has clearly
C
held that the effect of the provision contairied in s. 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 i¥11ore it and we have to hold that the High
D
Court was incorrect m rejecting the plea of the appellants on
the ground that a valid affirmation had been made by respondent
No. 1 on 21st January, 1967 just before the scrutiny of his nomination paper.
In view of this position taken up on behalf of the appellants,
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Mr. A. K. Sen, learned counsel for respondent No. 1, put forward
the alternative plea that respondent No. 1 was not disqualified
under Art. 173(a) of the Constitution, because he had villidly
made affirmations at two other places on the 19th and 20th
January, 1967.
For this purpose, reliance was placed on the
statements made by respondent No. 1 when he was cross-examined
on behalf of the appellants. Respondent No. 1 at one stage
F
stated that he filed his nomination at Bagalkot on the
19th
January, 1967 between 2 and 3-00 p.m. in the afternoon. On
further cross-examination came his statement that, at Bagalkot
he subscribed to the affirmation on the very day on which he
presented his nomination pape!i and he also confirmed that he was
in a position ·to affirm on personal knowledge that he had filed
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his nomination at Bagalkot on the 19th January, 1967. Similarly,
he also stated that he filed his nomination for the Hoovinahadagali
Constituency at Hospet and, though he could not giVe the exact
date on which he filed the nomination paoer, he remembered that
he subscribed to the affirmation there on the night of 20th
January, 1967. It W!\S urged by Mr. Sen that, having made affirH
mation once either at Bagalkot or at Hospet in accordance with
the requirements of law, respondent No. 1 became qualified under
Art. 173 (a) of the Constitution to be a candidate for the Legisla·
(1) A.I.R.1968S.C. !064.
532
SUPREME COURT REPORTS
[1969] 3 S.C.R.
tive Assembly and, therefore, it was immaterial that he did not
again make an affirmation in time before the Returning Officer
of Shiggaon Constituency.
This claim was resisted by Mr. Patil 011 two grounds. The
first point urged was that this was a new case being set up on
behalf of respondent No. 1 for the first time in this Court and it
should not, therefore, be taken into account.
The second was
that, in any case, the affirmation at Bagalkot or Hospet could
not enure to the benefit of respondent No. l for holding him
to be qualified under An. 173(a) of the Constitution to stand
as a candidate from Shiggaon Constituency. On the first point,
we consider that, in view of the position noticed by us earlier,
respondent No. l is fully justified on relying on this alternative
case in this Court, even though it ~as not put forward during the
trial in the High Court. While the case was being tried in the
High Court, the plea put forward by the appellants themselve;
was different from the plea on the basis of which the affirmation
made by respondent No. 1 at Shiggaon on 21st January, 1967 is
being held to be insufficient for conipliailcc. with the requirements
of Art. 173 (a). In the High Court, that affirmation was challenged solely on the ground that it should have been made prior
ti> 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. Now that we have permitted the appellants to raise a new
ground and rely on the decision given by this Court in Pashupati
Nath Singh's case('), there is no justification for debarring respondent No. 1 from putting forward the alternative case 'JD the basis
of the affirmations made at Bagalkot and Hospet.
The fact of
affirmations having been made by respondent No. 1 at those two
places before the Returning Officers of those Constituencies was
elicited by the counsel for the appellants themselves in the crossexamination.
The facts, having come on record,
cannot be
ignored, so that reliance has rightly been placed on !hose fact<
on behalf of respondent No. 1.
On the second point, the ·argument has proceeded primarily
on the language of the notification issued by the Election Commission in pursuance of clause (a) of Art. 173 of the Constitution.
Article 173(a) is as follows:-
"173. A person shall not be qualified to be chosen
to fill a seat in the Legislature of a State unless he,-
(a) is a citizen of India, and makes
and
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the Election Commission an oath or affirmation ~ccord-
(1) A.LR. 1968 S.C. 1064.
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HUSSAIN KHAN v. NIJALINGAPPA (Bhargava, l.)
533
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ing to the form set out for the purpose in the Third
Schedule."
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The notification issued by the Election Commission, which is
No. 3/130/65(2), dated 2nd January, 1965, is to the following
effect:-
"In pursuance of clause (a) of Article 17 3 of the
Constitution, and in supersession of
its
notification
No. 3/130/63(2), dated the 15th November, 1963, the
Election Commission hereby directs (a) that candidate
for election to the Legislature of a State by an assembly constituency, or a council constituency, shall make
and subscribe the oath or affirmation according to the
form set out for the purpose in the Third Schedule to
the Constitution, before the Returning Officer or an
Assistant Returning Officer for that constituency; and
(b) that a candidate for election to fill a seat or
seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make
and subscribe the said oath or affirmation before the
Returning Officer or the Assistant Returning Officer for
that election :
Provided that if any such candidate is at the time
confined in a prison or under preventive detention, he
may make and subscribe the said oath or affirmation
before the Superintendent of the prison or Commandent of the detention camp in which he is so confined or
under such detention."
The controversy between the panies has arisen because of the
language used by the Election Commission in this
notification.
The notification requires that a .candidate for election to a Legislature of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before
the Return4ig Officer or an Assistant Returning Officer for that
Constituency. Mr. Sen urged that this notification can be interpreted in two ways.
The first interpretation sought to be put
on it was that, according to this notification, if a person is a
candidate for election to the Legislature of a State by an Assembly
Constituency, all that it requires is that the affirmation mast be
made before the Returning Officer of an Assembly Constituency,
while, if he is seeking election to a Council Constituency, then
the affirmation must be made before the Returning Officer of a
Council Constituency. In putting this interpretation, learned
counsel wants us to hold that the expressiop "Returning Officer
for that Constituency" refers to any Returning Officer of a Legislative Assembly or a Legislative Council, as the case may be.
We do not think that this interpretation can be accepted by us.
534
SUPREME COURT REPORTS
[1969] 3 S.C.R.
In using the expression "that Constituency", it is clear that ~he
intention of the Election Commission was that the affirmation
must be made before the Returning Officer of
that · particular
constituency from which the candidate is seeking election. to the
Legislature of the State, whether it be an Assembly Constituency
or a Council Constituency.
This was the second interpretation
which Mr. Sen himself accepted as a possible one. This is also
the interpretation which was sought to be put on this notification
by Mr. B. S. Patil on behalf of the appellants. We think that this
interpretation is correct, so that, in order to get over the disqualification laid dowfl in Art. 173(a), a candidate must make an
affirmation before the Returning Officer or an Assistant Returning
Officer of that particular constituency from which he is a candidate.
Mr. Sen's case is that, even on this interpretation, respondent
No. 1 had qualified to be a candidate, because, when he made
the affirmation tdore the Returning Officer at Bagalkot, he was
already a candidate nominated for election from that constituency.
Similarly, when he made the affirmation before the Returning
Officer at Hospet, he had already been nominated as a candidate
for the Hoovinahadagali Constituency.
The argument was that,
once respondent No. l had made an affirmation, as required by
Art. 173(a) of the Constitution, before one of the persons authorised by the Elcsticn Commission, he hr'd fully complied with the
requirements of Art. 173(a) and, thereupon, he bacame qualified
to be a candidate for election to the Mysore Legislative Assembly.
There was no Tequirement that that qualification must be acquired
separately in respect of each constituency from which respondent
No. J was seeking election. We are of the view that this submission must be accepted. 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 integrity of India, and, to ensure this, he must
make an oath or affirmation. Once such an oath or affinnation
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 ihat
there is no necessity that he must make oath or 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 r~quires 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 Le?islature 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
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HUSSAIN KHAN V. NIJALINGAPPA (Bhargava, J.)
535
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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. 1
fails and must be rejected.
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We may next take up the question of the charges of corrupt
practices alleged to have been committed with the consent of
respondent No. I relating to bribery, undue influence and obtaining of assistance from a Government servant, viz., the Returning
Otlicer.
In support of these charges, only six witnesses were
examined on behalf of the appellants. Two of them, P. W. 5 and
P.
W. 6, are appellant No. 2 and appellant No. 1 respectively.
Two other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad
Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar. P. W. 2.
We have already referred to
alt these
witnes;es when giving the version put forward on behalf of the
appellants. The only other witness who remains to be mentioned
is Hanumamhasa Pawar. P. W. 1, a photographer, who came
forward to state that he took a photograph in the office of the
Returning Officer at about 5 p.rn. on the 21st January 1967.
when respondent No. I and the Returning Officer were sitting
close to each mher after the scrutiny of the nomination papers.
He was examined primarily to show the close connection between
respondent No. 1 and the Returning Officer, respondent No. 2. As
against these witnesses examined on behalf of
the
appellants.
respondent No. I examined five witnesses.
R. W. 1 is respondent
"<o. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa
Hosamani, respondent No. 2, who was the Returning Officer. A
third witness for the respondents is Gadigeppagouda Channabasanagouda Patil. R. W. 2, who was first put forward as the official.
candidate by the Congress from this Shiggaon Constituency, but
who himself took active part in persuading resp-ondent No. 1 to
be a candidate on behalf of the Congress from this Constituency.
The next witness examined is Hanumanthagouda Ayyangouda
Patil, R. W. 3, who was the proposer of respondent No. 1 in the
nomination paper filed in this Constituency and in whose house.
the appellants alleged, they were kept confined from the night of
20th January up to the early hours of the morning of 22nd
January. 1967. The fifth witness is Gurupadappa Basappa
Mahalinga Shetty, R. W. 4, the son-in'law of respondent No. 1.
The High Court, in assessing the'value of the evidence given on
behalf of the two parties, has expressed the ooinion that all the
witnesses examined by either side are persons interested in the
two rival candidates, except the Returning Officer, R. W. 5, in
whose case the High Court has not accepted the charge of partiality brought by the appellants in the election petition~ The High
Court, therefore, perferred to rely on the evidence of R.W. 5, and
536
SUPREME COURT REPORTS
(1969] 3 S.C.R.
attached very little value to the evidence of the Oilier witnCMCS
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examined by the two sides.
We are inclined to agree with the 'High C~urt with regard to
the assessment of the value of the evidence of the witnesses examined by both sides and, even with regard to the evidence of the
Returning Officer, R. W. 5, we have the feeling that his evidence
miist also be accepted with great caution, because it cannot be
said that he was totally disinterested and independent.
So far as
the witnesses examined on behalf of the appellants are concerned,
the two appellants themselves' are the election petitioners and,
very clearly, their testimony has only the value that can be
attached to evidence of contesting parties themselves who are
bound to speak in support of their case. Mr. Patil .particularly
relied on the evidence of P. Ws 3 and 4 who, according to the
part played by them envisaged in the version put forward on
behalf of the appellants, were in a position to state to facts showing that there was offer of bribery to appellant No. 1 and undue
influence was also exercised against them.
These witnesses are
also admittedly highly interested.
Appellant N'o. 1 in. his statement has come forward with the plea that P. W. 4, Mohammad
Jaffar, was one of the persons ·who was sponsoririg his candidature for this election, so that there was a close bond between them.
In fact, the appellants" further case itself was that appellant No. 1
was approached by Patil Puttappa through P. W. 4 because of
the close relations between them.
P. W. 3 also, according to
appellant No. 1, was brought in by Patil Puttappa because he
was a great friend of P. W. 4 and was expected to inlluence him
in his attempts to persuade appellant No. 1 to withdraw.
Thus.
in putting forward their own case, the appellants have shown that
P.Ws. 3 and 4 are not independent persons.
P. W. 2 was the
lawyer engaged by the , appellants for the purpose of putting
forward their case that the withdrawal of his CllJldidature by
appellant No. I was not genuine and had been· manoeuvred by
persons acting on behalf of respondent No. 1. Being their lawyer,
he cannot be held to be beyond the influence of the appellants.
So far as P.W. l, the Photographer, is concerned, the High Court
has found that there is material in his own evidence indicating
that he is not a very reliable person and we find no reason at
a II to differ from the view taken by the High Court on this point.
Similarly, amongst the witnesses examined on
behalf
of
. respondent No. I, R. W. I is respondent No. 1 himself and,
consequently, the view we have expressed with reganj to aopelJants 1 and 2 will equally apply to him. R. W. 2 was the official
Congress candidate. He withdrew his candidature and 'took an
active part in persuading respondent No. I to be a candidate in
his place.
He was, therefore, clearly a person interested in the
candidature of respondent No. I. R. W. 3 was the proposer
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HUSSAIN KHAN v. NIJALINGAPPA (Bhargava, J.)
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who nominated respondent No. 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No. l. R.W. 4 is the son-in-law of respondent No. I who also took active part in arranging that the official
candidate R.W. 2 withdrew from candidature and respondent
No. I was made the candidate on behalf of the Congress in this
Constituency in his place.
None of these four witnesses can,
therefore, be said to be independent.
So far as the Returning Officer, R. W. 5, is concerned, he
was a Government servant and was acting in his official capacity
as Returning Officer in this Constituency.