J.H. PATEL versus SUBHAN KHAN

Citation: [1996] SUPP. 3 S.C.R. 864 · Decided: 24-07-1996 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
J.H. PATEL 
v. 
SUBHAN KHAN 
JULY 24, 1996 
[A.M. AHMADI, C.TI, DR. A.S. ANAND AND S.B. MAJMUDAR, JJ.] 
Rcprese11tation of People Act, 1951-Section 36(2}-Nomina-
tion--<Jatlz required by Anicle 173 of the Co11stitutio11 of Jndill-lt has to be 
taken p1ior to date of scrutiny of ;1on1ination paper and not on the san1e 
C day-Expression '011 the date fixed for SC1utiny' - It means Oil the whole of 
the day Oil which sciutiny has to take place'--<Jatlz ollce takell for any con-
stitztellcy would be valid for election of the collcemed assemb(v---Effect of non 
disclosure of the fact of having subsC1ibed an oath on an earlier date p1ior to 
scnttiny. 
D 
Election Petitio1.--0rigi11al Proceeding-Jwisdiction of High Co1111 to 
E 
F 
consider fresh mateiial--Potential for mischief 
Constitutio11 of /11dia--A1ticle 173-Qualification for membe1'·hip of 
Stale Legislature--Oatlz-Requirements. 
The respondent filed the election petition challenging the election of 
the appellant on the ground that his nomination paper was improperly 
rejected by the returning Officer. For Channagiri Legislative Assembly 
constituency, the respondent's name was proposed !'or candidature on 
29.10.1994. The respondent took oath before the Assistant Returning Of-
ficer at 10.50 a.m. on 3.11.1994, the date fixed for scrutiny of nomination 
papers. The Returning Officer rejected the nomination of the respondent. 
Elections were held and the appellant was declared elected. The respon-
dent challenged the election as void on the ground that the rejection of his 
nomination was improper. The High Court set aside the election on ground 
G of improper rejection of the respondent's nomination holding that the oath 
taken on the date of the scrutiny was not sufficient but that the oath taken 
on 27.10.1994 at another Constituency (Davanagere Constituency), as 
required by Article 173 of the Constitution, although not brought to the 
notice of the Returning Officer at the time of scrutiny, would qualify 11im 
to contest the election from the concerned constituency and that the 
H respondent was entitled to raise any fresh ground or produce any fresh 
864 
J.H. PATEL v. SUBl-lAN KHAN 
865 
material to prove the fact that his nomination paper was improperly A 
rejected and the fact that the respondent did not bring this fact to the 
notice of the Returning Ollicer would not disentitle him to rely on the fact 
before the High Court. This ap11eal had been filed against the decision of 
the High Court in accepting fresh material produced for the first time 
before it. 
The appellant alleged that the reasoning of the High Court if ac-
cepted would lead to absurd results as mischiernus elements could then 
tile nomination at one place and take oath at another and later challenge 
B 
the rejection of the nomination; that the Returning Ollicer was right in 
rejecting the nomination paper on the basis of material placed before him C 
and that the plea of the respondent in the face of his unfair and improper 
conduct \+'ould an1ount to misuse of the electoral process and that even 
\Vhen the candidate whose no1nination is rejected can be permitted to 
<1uestion the correctness of the rejection on a ground other than the one 
on \Vhich the rejection \\-'as founded, the Court should he extren1ely cir~ 
cun1spect about the same because of the possibility of mischief that can be 
played to defeat the election if the desired result is not achieved and 
therefore, the court should permit a new ground to be raised only as a 
defence and that in such cases the Court should test the bona fldes of the 
candidate \\'ho challenges the election of' the successful candidate and 
ascertain if he \\'as put up as a dummy to be used, if need be. 
D 
E 
The respondent submitted that election law being a technical law, 
there \Vas no room for etJUity and that in the instant case, the respondent 
took oath at the earlies< opportunity on 3.11.1994 since 1.11.1994 and 
2.11.1994 were admittedly public holidays and he had returned from 
F 
Bombay on 31- 10-1994. In the cross objections filed by the respondent he 
contended that oath taken on the date of scrutiny was valid and that the 
finding tliat the High Court to the effect that he had not brought to the 
notil:e of the Returning Officer about the affirmation at Davangere was 
incorrect. 
The question of fact raised for consideration was, whether the 
respondent had inforn1ed the Returning Oflicer that he had subscribed an 
oath or 

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