PASHUPATI NATH SINGH versus HARIHAR PRASAD SINGH

Citation: [1968] 2 S.C.R. 812 · Decided: 22-01-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 affirma-
tion immediately before the objection was considered by the lleturning 
Officer. 
As soon as a candidate makes or subscrib6 the oath or affirma-
tion, he would become qualified under Art. 
173 
of the Constitution, 
and this qualification would exist "on the da!e fixed for the scrutiny" with-
in 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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• 
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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 Return-
ing 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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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 certifi-
cate issued by the Election Commission. [817 B, C] 
Ctv1L APPELLATE JuR1so1cnoN: 
Civil Appeal No. 1692 
of 1967. 
A

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