# PASHUPATI NATH SINGH v. HARIHAR PRASAD SINGH January 2z, 1968

- **Citation:** [1968] 2 S.C.R. 812
- **Court:** Supreme Court of India
- **Decided:** 1967-01-21
- **Bench:** M. H1Dayatullah 0 S. M. S!Kri, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pashupati-nath-singh-v-harihar-prasad-singh-january-2z-1968-4240
- **Pages:** 7

## Headnote

Rtpr<Stntation of the People Act, 1951, ·"· 30 to 35, and 3~cndi
.date not having made or subscribed ooth nr t;/firmation under Art. 173(a)
-Whether entitled to do so on date fixed
fOI' scrutiny of nomination
paptr.~.-"On lhe date fixed for scrutiny"-nrtaning of.
Con.rrit11tion of India Art. 173fal an<I third Schedule-When oath tx
C1{firn1<.:tion 10 he 1nade or subscribed by candidaJt.
The ap1dlar,; challenged the election of the respondent to the Bihar
Legislative /.,ssembly by an election pctilion on the ground that his own
nomination paper had been improperly reject~d by the Retumin& Officer.
On January 21, 1967 the dale fixed for scrutiny of nomination papers
under s. 36 of the Reprc'S"•nlation of the People Act, 1951. the Returning
Officer rejected the nomination paper of the appellant on tbe ground that
he was Jl01 qualified to be chosen to fill a scat in the State Legislature
since he had not made and subscribed the requisite oath or affirmation as
enjoined bv clause (a) of Art. 173 of tbe Constitution. The High Court
rej-zcted the appellant's election petition.
ll was contended for the appellant that on objection being taken undtr
s. 36(2) that the petitioner had not made and suh<cribed
an oath or
affirmation acoording to the form se: out in the Third Schedule of the
LI:>nstitution, he was entitl~d to make and subscribe the oath or affirmation immediately before the objection was considered by the lleturning
Officer.
As soon as a candidate makes or subscrib6 the oath or affirmation, he would become qualified under Art.
173
of the Constitution,
and this qualification would exist "on the da!e fixed for the scrutiny" within the meaning of s. 36(2) because the date of scrutiny of nomination
papers-in this case January 21, 1967-would not ha"'. passed away by
the time the oath or affirmation is taken or sub5cribcd.
HELD : dismissing the appeal.
The expression "on the date fixed for scrutiny" in s. 36(2) (a) means
"on the whole of the day on which the scrutiny of nomination has to take
place".
In other words, tbe qualification must exist from
the earliest
moment of the day of scrutiny. On this date the Returning Officer has to
decide the objections and the objections have to be made by the other
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candidates after examining the nomination papers and in the Hght of s.
G
36(2) of the Act and other provisions.
On the dale of the scrutiny the
other candidalcs shouJd be in a position to raise all possible objections
he·forc the scrutiny of a particu1ar nomination paper starts. (817 F-Hl
Parnte.- v.·/Gme.<, (1866-67) LR. 2 C.P. 348 and Reg v. H111nphtry,
10 Ad'. & E. 335: referred !o.
The fact that there was no place in form
2B prescribed
under the
Conduct of Election Ru:cs. 1961 wh-:re it can be staied by the candidates
H
1hat he had taken th~ requisite oath or affirmation docs nol mean that th-.:
oath or affirmation cnn he taken and subscribed on the date fixed for
c;crutiny.
The nomination paper does not provide for the statement about
..
PASHUPATI NATH V. HARIHAR PRASAD (Sikri, J,)
813
A
the oath because the oath or affirn1ation has to be taken after a candidate
has been nominated.
It cannot be said that a person can be regarded as
nominated only when, after scrutiny of the nomination papers, the Returning OffiC'er finds him to be validly nominated.
The form of oath does not
say "having been vali<lly nominated" but only "having been nominated".
[818 EJ
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G
Shira Sluu1k(;r Kanodia v. Kapildeo Narain Singh, Election Appeal No.
4 of 1965; judgment dated September 22, 1965 of the Patna High Court;
disapproved.
The words "having been nominated" in the fo'rm
of the
oath
or
affirmation in the third Schedule to the Constitution clearly show that the
oath or alftrmation c.innot be taken or made by a candidate before he has
been nolT'!!'l.atcd as a candidate.
Further. it is clea·r that none of the
sections ·from s. 30 to s. 36 require that this Oath should accompany the
nomination paper.
No refeience has bee"n made to th

## Text

PASHUPATI NATH SINGH
v.
HARIHAR PRASAD SINGH
January 2z, 1968
(M. H1DAYATULLAH 0 S. M. S!KRI AND K. S. HEGDE, JJ.]
Rtpr<Stntation of the People Act, 1951, ·"· 30 to 35, and 3~cndi
.date not having made or subscribed ooth nr t;/firmation under Art. 173(a)
-Whether entitled to do so on date fixed
fOI' scrutiny of nomination
paptr.~.-"On lhe date fixed for scrutiny"-nrtaning of.
Con.rrit11tion of India Art. 173fal an<I third Schedule-When oath tx
C1{firn1<.:tion 10 he 1nade or subscribed by candidaJt.
The ap1dlar,; challenged the election of the respondent to the Bihar
Legislative /.,ssembly by an election pctilion on the ground that his own
nomination paper had been improperly reject~d by the Retumin& Officer.
On January 21, 1967 the dale fixed for scrutiny of nomination papers
under s. 36 of the Reprc'S"•nlation of the People Act, 1951. the Returning
Officer rejected the nomination paper of the appellant on tbe ground that
he was Jl01 qualified to be chosen to fill a scat in the State Legislature
since he had not made and subscribed the requisite oath or affirmation as
enjoined bv clause (a) of Art. 173 of tbe Constitution. The High Court
rej-zcted the appellant's election petition.
ll was contended for the appellant that on objection being taken undtr
s. 36(2) that the petitioner had not made and suh<cribed
an oath or
affirmation acoording to the form se: out in the Third Schedule of the
LI:>nstitution, he was entitl~d to make and subscribe the oath or affirmation immediately before the objection was considered by the lleturning
Officer.
As soon as a candidate makes or subscrib6 the oath or affirmation, he would become qualified under Art.
173
of the Constitution,
and this qualification would exist "on the da!e fixed for the scrutiny" within the meaning of s. 36(2) because the date of scrutiny of nomination
papers-in this case January 21, 1967-would not ha"'. passed away by
the time the oath or affirmation is taken or sub5cribcd.
HELD : dismissing the appeal.
The expression "on the date fixed for scrutiny" in s. 36(2) (a) means
"on the whole of the day on which the scrutiny of nomination has to take
place".
In other words, tbe qualification must exist from
the earliest
moment of the day of scrutiny. On this date the Returning Officer has to
decide the objections and the objections have to be made by the other
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D
F
candidates after examining the nomination papers and in the Hght of s.
G
36(2) of the Act and other provisions.
On the dale of the scrutiny the
other candidalcs shouJd be in a position to raise all possible objections
he·forc the scrutiny of a particu1ar nomination paper starts. (817 F-Hl
Parnte.- v.·/Gme.<, (1866-67) LR. 2 C.P. 348 and Reg v. H111nphtry,
10 Ad'. & E. 335: referred !o.
The fact that there was no place in form
2B prescribed
under the
Conduct of Election Ru:cs. 1961 wh-:re it can be staied by the candidates
H
1hat he had taken th~ requisite oath or affirmation docs nol mean that th-.:
oath or affirmation cnn he taken and subscribed on the date fixed for
c;crutiny.
The nomination paper does not provide for the statement about
..
PASHUPATI NATH V. HARIHAR PRASAD (Sikri, J,)
813
A
the oath because the oath or affirn1ation has to be taken after a candidate
has been nominated.
It cannot be said that a person can be regarded as
nominated only when, after scrutiny of the nomination papers, the Returning OffiC'er finds him to be validly nominated.
The form of oath does not
say "having been vali<lly nominated" but only "having been nominated".
[818 EJ
B
c
D
E
F
G
Shira Sluu1k(;r Kanodia v. Kapildeo Narain Singh, Election Appeal No.
4 of 1965; judgment dated September 22, 1965 of the Patna High Court;
disapproved.
The words "having been nominated" in the fo'rm
of the
oath
or
affirmation in the third Schedule to the Constitution clearly show that the
oath or alftrmation c.innot be taken or made by a candidate before he has
been nolT'!!'l.atcd as a candidate.
Further. it is clea·r that none of the
sections ·from s. 30 to s. 36 require that this Oath should accompany the
nomination paper.
No refeience has bee"n made to the form of oath
in s. 33 or s. 35, although in s. 33 it is provided that in certain cases the
nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. [817 B, C]
Ctv1L APPELLATE JuR1so1cnoN:
Civil Appeal No. 1692
of 1967.
Appeal under s. 116-A of the Representation of the People
Act, 195 l from the judgment and order dated September 26,
1967 of the Patna High Court in Election Petition No. 8 of
1967.
H. R. Goklwle, J. P. Goyal and Sobhag Mal Jain, for the
appellant.
S. V. Gupte, S. N. Prasad and B. P. Singh, for the respondent.
R. K. Garg and S. C. Agarwal, for the intervener.
The judgment of the Court was delivered by
Sikri, J.
This is an appeal under s. 116A of the Represer.-
tation d the People Act, 1951-hereinafter referred to as the
Act-from the. judgment of the High Court of Judicature at
Patna dismissing Election P~tition No. 8 of 1967 filed by the
appellant Pashupati Nath Singh hereinafter referred to as the
petitioner.
ln order to appreciate the point arising before us it
is necessary to state the relevant facts.
The petitioner stood as a candidate for election to the Bihar
Legislative Assembly.
The election to that Assembly from the
Dumraan Assembly Constitu~ncy was held during the last geneH
ral elections as per the following schedule ;
"(a) Date of filing nomination papers-13-1-1967 to
20-1-1967.
L3 Sup Cl/68-~
814
SUPREME COURT REPORTS
[ 1968] 2 s.c.R.
(b) Date of scrutiny of nomination papers-21-1-1967.
A
(c) Last date of withdrawal of candidatures-23-1-1967.
(d) Date of poll-17-2-1967.
{e) Date of counting of votes-. 23-2-1967.
(f) Date of declaration of result of the election23-2-1967".
The petitioner filed his nomination paper before the Returning
Officer at Buxar on January 16, 196.7.
Eight other candidates,
including the respondent Harihar Prasad Singh, filed their nomination papers before the Returning Officer on different dates between January 13, 1967, and January 20, 1967. On January
21, 1967, the nomination papers were taken up for scrutiny,
when the Returning Officer rejected the nomination paper of
the petitioner and accepted the nomination papers of the remaining eight candidates. On February 17, 1967, the poll was
held and the respondent, Shri Hnrihar Pra,ad Singh, secured
the largest number of votes, namely, 14,539, and was accordingly declared elected. Thereupon the petitioner presented election petition in the Patna High Court for a declaration that the
election of the respondent is void on the ground that the nomination paper of the petitioner was in1propcrly rejected by the
Returning Officer.
The High Court held that the nomination of the petitioner
·.vas rightly rejected by the Returning Officer on the ground that
he was not qualified to be chosen to fill a seat in the State Legislature since he had not made and subscribed the requisite oath
or affirmation as enjoined by cl. (a) of Art. 173 of the Constitution, either before the scrutiny of nominations or even subsequently on the date of scrutiny.
The short question which arises in this appeal is whether it
is necessary for a candidate to make and subscribe the requisite oath pr affirmation as enjoined by cl. (a) of Art. 173 of the
Constitution before the date fixed
for scrutiny of nomination
paper.
Ino other words, is a candidate entitled to make and subscribe the requisite oath when objection is taken . before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination
commenced ? The answer to this question mainly depends on
the interpretation of s. 36(2) of·the Act. It will, however, be
necessary to refer to some other sections of the Act in order tr
fully appreciate the effect of the words used in that section
Section 32 of the Act provides for nomination of ·candidates for
election thus :
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PASHUPATI NATH V. HARIHAR PRASAD (Sikri, J.)
815
"Any' person may be nominated as a candidate for
election to fill a seat if he is qualified-to be chosen to
fill that seat under the provisions of the Constitution
and this Act or under the provisions of the Government of Union Territories Act, 1963, as the case may
be."
It was suggested by the learned counsel for the respondent,
Mr. Gupte, that this section means that a can~idate lll:ust. also
be qualified to be chosen 011; the last date for filmg nonupattons.
We need not consider this question because we have come to the
conclusion that the petitioner was not qualified for being chosen
to fiil the. seat on the date fixed. for scrutiny of nominations within the meaning of s. 36(2)(a).
Section 33 provides for presentation of nomination paper
and certain requirements for a valid nomination.
Sub-s. (2),
for instance, provides that in the case of a constituency ·where
any seat is reserved, the nomination paper must contain a declaration by the candidate specifying the particular caste or tribe
of which he is a member and the area in relation to which that
caste or tribe is a Scheduled Caste or, as the case may be, a
Scheduled Tribe of the State. Sub-s. (3) provides that where a
candidate is a person who, having held any office referred to
in cl. (f) of s. 7, has been dismissed and a period of five years
has not elapsed since the dismissal, he must with the nomination
paper give a certificate issued in the prescribed manner by the
Election Commission to the effect ihat he has rot been dismissed
for corruption or disloyalty to the State·.
Section 35 deals with the notice of nominations and the time
and place for their scrutiny.
The Returning Officer has to inform the person or persons ·delivering the nomination paper of
the date, time and place fixed for the scrutiny of nominations.
He is also required to sign a certificate stating the date on
which and the hour at which the nomination paper has been
delivered to him, and also to cause to be fixed in some conspicuous place in his office a notice of the nomination containing
·descriptions similar to those contained in the nomination paper,
both of the candidate and of the proposer.
Then comes s. 36, relevant portion of which reads
as
follows:
"36. Scrutiny of nominations.-(1) On the date
fixed for the scrutiny of nominations under section 30,
the candidates, their election agents, one proposer of
each candidate, and one other person duly authorized
in writing by each candidate, but no other person, may
attend at such time and place as the returning officer
816
SUPREME COURT REPORTS
[1968] 2 S.C.R.
may appoint; and the returning otlicer shall give them
all reasonable facilities for examining the 'nomination
papers of all candidates
which have been delivered
within the time and in the manner laid down in section 33.
( 2) The returning officer shall then exam inc the
nomination papers and shall decide all objections which
may be made to any nomination and may, either on
such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject
any nomination on any of the following grounds :-
(a) that on the date fixed for the scrutiny of
'lcminations the candidate either is not qualified or is
disql!alificd for being chosen to fill the seat under any
of the following provisions that may
be
applicable,
namely:-
Articles 84, 102, 17 3 and 191.
Part II of this Act. and sections 4 and 14 of the
Government of Union Territories Act, 1963 or
( b) that there has been a failure to comply with
any of the provisions of section 33 or section 34;
or
( c) that the signature of the candidate or the proposer on the nomination paper is not genuine ... "
It will be noticed that" under '· 36 (2) of the Act, one of
the grounds on which a nomination can be rejected is that Qn
the date fixed for the scrutinv of nominations the candidate is
not qualified for being chosen' to fill the scat under Art. 173 of
the Constitution.
The relcvanj part of Art. 173 provides :
"173. A person shall not be quaii1ied to be chosen
to fill a se~t in the Legislature of a State unless he-
( a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the
Election Commission an oath or affirmation according
to the form set out for. the purpose in the Third Schedirle."
The form referred to reads as under :
"Form of oath or affirmation to be made by a candidate for election to the Legislature of a State :-
" "l, A.R., having been no;ainatcd as a candidate to
fill a scat in the Legislative Assembly (or Legislative
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PASHUPATI NATH V. HARIHAR PRASAp (Sikri, J.)
817
Council), do swear in the name of God/ solemnly affinn
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" " ".
The words "having been nominated" in this fonn clearly
show that the oath or affirmation cannot be taken or made by a
candidate before he has been nominated as a candidate.
Further, it is clear that none of the sections from s. 30 to s. 36
require that this oath should accompany the' nomination paper.
No reference has been made to the fonn of oath in s. 33 or s.
3S, although in s. 33 it is provided that in certain cases the
nomination paper should be accompanied by a declaration or by
a certificate issued by the Election Commission. In this case it
is common ground that no oath or affinnation was attached to
the nomination paper or was filed before the date fixed for the
scrutiny.
Mr. Gokhale, who appears for the petitioner, contends that
on objection being taken under s. 36(2) that the petitioner hacl
not made and subscribed an oath or affirmation according to the
fonn set out above, he was entitled to make and subscribe the
oath or affirmation immediately before the objection was considered by the Returning Officer. He says that as soon as a candidate takes the oath or makes and subscribes the oath or affim,ation he would become qualified within the terms of Art. 173 of
the Constitution, and this qualification would exist "on the date
fixed for the scrutiny" because the date of scrutiny of nomination
paper-in this case January 21, 1967-would not have passed
away by the time the oath or affirmation is taken or subscribed.
It seems to us that the expression "on the date fixed for scrutiny" in s. 36(2)(a) means "on the whole of the day on which
the scrutiny of nomination has to take plaee". In other words,
the qualification must exist from the earliest moment of the day
of scrutiny. It wilt 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 s. 36(2) of the Act and other provisions. On the date of the scrutir.y 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 fonn
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.
Tt is not necessary under Art. 173 that the permn
authorised by the Election Commission should be the returning
officer.
818
SUPREME COURT REPORTS
{1968] 2 S.C.R.
In Paynter v. James('), Bovill, C.J., quoted, with approval,
A
the passage from lhe judgment of Tindal, C.J., in Reg v. Humphery('), in which the following occurs:
" .... we hold it therefore to be unnecessary to refer
to instances of the legal
meaning of the word 'upon'
which, in different cases, may undoubtedly either mean
before the act done to which it relates, or sim11lta11eo11sB
ly with the act done, or after the act done, according
as reason and good sense require the interpretation, with
reference to the context and the subject-matter of the
enactment."
Bovill, C.J., observed that "that is a very clear statement of the
various meanings of the word "on" or "upon''."
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 th!lt a candidate would be
entitled to qualify for being chosen to fill a seat till the very end
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of the date fixed for scrutiny of nominations.
If the learned.
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counsel for the petitioner is right, the candidate could ask the
Returning Officer 10 wait till 11.55 p.m. on the date fixed for
the scrutiny to enable him to take the oath.
Reference was also made to Form 2B in the Conduct of
Elections Rules. 1961. 'It was pointed out that in ihis form there
1s no place where it can be stated by the candidate that he
had taken the requisite oath or aftirmation.
But, )his in our
view does not mean that the oath or affirmation can be ·taken
and subscribed on the date fixed for scrutiny.
It seems to us
that the. nomination paper docs not provide for the statement
about the oath because the oath or affirmation has to be taken
after a candidate has been nominated.
Our attention was invited to an unreported decision of the
Patna High Court in Shiva Shankar Kanodia v, Kapildeo Narain
Singh('). That decision proceeded on the basis that "one ,can be
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said to be so nominated only when, after scrutiny of the. nomination papers. the Returning Officer finds him to be validly nominated, as provided under section 36 ( 8) of the Repr~ent.aG
tion of the People Act, 1951." With respect, the High Court
proceeded on a wrong basis.
The form of oath does not say
"having been validly nominated" but only "having been nominated."
In the result the appeal fails and is dismissed with costs.
R.K.P.S.
Appeal dismissed,
H
(ll (1866-67) L. R. 2 C. P. 348.
(2) to A. D. &. E. JJS.
(3) Eltcti~n Appeal No. 4 of t%5; judgn1en1 dated September 22. 1965.
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