KHAJE KHANAVAR KHADERKHAN HUSSAIN KHAN AND OTHERS versus SIDDAVANBALLI NIJALINGAPPA & ANR.

Citation: [1969] 3 S.C.R. 524 · Decided: 04-02-1969 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 affirma-
tion-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)-Require-
nient of making oath or affinnation before con1petent officer 'of that cons-
1ituency'-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 time-
schedule "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 unoppos-
ed on the date of scrutiny on the ground that all other candidate;, includ-
ing the fin;t appellant, had withdrawn their candidature. The first appel-
lant 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 affirma-
tion 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 conni-
vance of the Returning Officer in relation to the corrupt practices and irre-
guta·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 mid-
c 
D 
Jt 
F 
G 
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A 
B 
c 
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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 summon-
ing 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 alterna-
tive 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 Com-
miuion was that the affirmation must be made before the Returning Offi-
cer or Assistant Returning Oflicer of that particular constituency 
from 
which the candidate was seeking election to the Legislature of the State, 
whether it be a

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