Holding

The oath required under Article 173 must be taken prior to the date of scrutiny and be produced in the prescribed form at the time of scrutiny; a prior oath or a mere certificate not disclosed to the Returning Officer cannot validate the nomination, and the High Court erred in setting aside the election.

Summary

In the Channagiri Legislative Assembly election, Subhan Khan's nomination was rejected because he had not taken the oath required under Article 173 of the Constitution on the day of scrutiny. He argued that an oath taken earlier on 27 October 1994 in another constituency (Davanagere) should suffice, and the High Court accepted fresh evidence of that oath and set aside the election of J.H. Patel. The Supreme Court held that the oath must be taken prior to the date of scrutiny and be produced in the prescribed form at the time of scrutiny; a mere prior oath or a certificate thereof, undisclosed to the Returning Officer, cannot satisfy the requirement. While the Court affirmed that an election petition may consider fresh material, it found that the High Court erred in accepting the late evidence and in overturning the election. Consequently, the appeal was allowed, the High Court order set aside, and the election of J.H. Patel upheld.

Issues considered

Whether an oath taken on the day of scrutiny (10:55 a.m. on 3 November 1994) satisfies the requirement of Article 173.
Whether an oath taken earlier (27 October 1994) in a different constituency can be considered for the nomination in the concerned constituency.
Whether the election can be set aside on the basis of the earlier oath despite a negative finding on the fact of its existence.
Whether an election petition, as original proceedings, may entertain fresh material not raised before the Returning Officer.
Whether non‑disclosure of a prior oath and failure to produce the certificate amounts to mischief and affects the validity of the nomination.

Legislation cited

Representation of People Act, 1951s. 36(2)

Subjects

election petitionnomination rejectionArticle 173 oathRepresentation of People Actfresh materialhigh court jurisdictionmischiefbona fidesoriginal proceedings

Judgment

A J.H. PATEL
v.
SUBHAN KHAN

JULY 24, 1996

B [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
consider fresh mateiial--Potential for mischief

Constitutio11 of /11dia--A1ticle 173-Qualification for membe1'·hip of
Stale Legislature--Oatlz-Requirements.
E 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-
F 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.
B
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
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~
D
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. 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.
G
The question of fact raised for consideration was, whether the
respondent had inforn1ed the Returning Oflicer that he had subscribed an
oath or atTirmation in the prescribed for1n in the Davangere Constituency
on 27.10.1994. The questions of la\\-' that arose for consideration were: (a)
whether the oath taken at 10:55 a.m. on 3.11.1994 would suflice for the H
866 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A scrutiny held at 11.00 a.m. on that very day; (b) whether the oath taken on
27.10.1994 at Davangere could be taken into consideration for scrutiny of
the nomination for the concerned constituency; and (c) whether the elec-
tion could be set aside on the basis of oath of 27.10.1994 even if the question
of fact raised by the respondent was decided in the negative.
B Allowing the appeal, this Court

HELD: 1.1. The oath re11uired by Article 173 of the Constitution of
India has to be taken prior to the date of scrutiny of the nomination paper
and not on the same day, 1ninutes before the scrutiny. The oath to be taken
C under Article 173 of the Constitution of India once taken for any con-
stituency "'ould be vaHd for the election to the concerned assernbly. The
earlier oath, the any, has to be subjected to scrutiny on the date and plact:
lixed for the purpose. The eligibility of the candidate as per the require-
1nents of Article 173 of the Constitution is St(U'1rely a matter for scrutiny.
The oath subscribed by the candidates would itself be subject to scrutiny.
D The 1nere inf'orn1ation that an oath has been subscribed could not have
fullilled the requirement of scrutiny. Even the certificate of oath would fall
short of the re11uiren1eut. The certificate did not reproduce the oath
subscrihed:The candidate contesting the election could not, therefore, has
scrutinised the validity of the oath and could not have raised any objection
E to it. [SiO-E; 871-D-E; 872-C; 873-A)

1.2. An election petition, being original proceedings and not appel-
late proceedings, the High Court's jurisdiction cannot be confined to the
grounds on lrhich the Returning Otlicer rejected the nomination. It \Vas
not precluded fro;n considering any other ground or fresh n1aterial bear-
F ing on the tiuestion of the rt>jection of the nomination paper. [876-B-C]

1.3. The respondent did not inform the Returning OOicer that he had
subscribed an oath on October 27, 1994 nor did ht> produce the certificate
of oath before the returning Otlicer. That is the finding of fact recorded
by the High Court \Vhich has been subscribed. There was no reason for the
G Returning Otlicer not to accept the certificate if it was tendered to him
when he himself had written to the respondent on October 29, 1994 to
complete that re<1uircment. If that be so, it becomes obvious that he
deliberately allowed the rejection of his nomination paper because he knew
fully well that if he did not subscribe the oath before the date of actual
H scrutiny his non1ination \-\'ould be rejected. He was not a serious contender
.I.II. PATELv. SUBHAN KHAN 867

for the seat of that Channagiri constituenc)'; othernise he "'cn1ld hin1self A
have filed the nomination papers as he did in the case of Davanagere
constituency. It is, therefore, obvious that the voter had been responsible
for his no1nination in the Channagiri constituency. Fro1n these facts it
emerged that he did not inform the Returning Otlicer of his having taken
oath before the Returning Otlicer of Davanagere constituency on October B
27, 1994 nor did he produce the certificate before the Returning Oflicer of
Channagiri constituency. He did not seek time for its production either.
This backdrop was suflicient to create a doubt regarding the bona }ides of
the respondent. The rejection of the non1ination ·paper \\'as a planned
action. In any case, the respondent "'as hin1self to blame for the rejection
of his nornination papers rrlating to the Channagiri constituency. It is not C
nu.~rcly a question of et1nity but a <JUestion of principle that a person \\'ho
deliberately and designedly fails to. disclose inforniation \rithin his special
knon·ledge and fails to produce material in that behalf thereby virtually
engineering the rejection of his nomination cannot be per1nitted to raise a
fresh ground which would adversely affect the opposite party. A party D
\Yhich does not co1ne to court \'t'ith clean hands cannot seek such an
indulgence. In the circun1stances of this case, a serious doubt arises as to
the hona fides of the respC1ndent in oniitting to produce the n1atcrial
evidence before the Returning Ollicer. The respondent had planned the
rt'jection of his no1nination. The n1ere production of the certificate on the
record of the present procecdings cannot satisfy the rcquiren1ent of A.rticle E
173 of the Consti.tution. That certificate mercly stated that he had taken
an oath as required by Article 173 but what is important is the text of that
docu1nent i.e., \\'hether it \\'as in the prescribed form or not. The Returning
Oflicer at Channagiri \\'ould huve to satisfy hiniself that the oath taken at
Davanagere \\-'as in the form prescribed under Article 173 of the Constitu- F
tion and a mere certificate to the efl'ect that he had taken oath \\'ould not
sutlice. Even the production of the Certificate \vould not have been sufli-
cient to invalidate the election of the appellant. [879-H-H; 880-A-C]

CIVIL APPELLATE JURISDICTION : Civil appeal No. 17Y5 of
1996 Etc. G

From the Judgment and Order dated 3.l.96 of the Karnataka High
Court in E.P. No. 10 of 1995.

S.J. Sorahjcc, K N. Bhatt, S. Sukumaran, for JED & Co., Raju H
868 SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A Ramachandran, Ejaz Maqbool, B.K. Mishra, Ms. Shabana Tarannum, and
Joseph Pookett for the appearing parties.

The Judgment of the Court was delivered by

B AHMADI, CJI. By an order dated March 20, 1996, Civil Appeal No.
1795/96 was allowed and the impugned order of the High Court dated
January 3, 1996, was set aside. The Civil Appeal No. 3677/96 which was
actually cross objections liled by the respondent in Civil Appeal No.
1795/96 was dismissed. The election petition from which the present ap-
peals arose was consequently dismissed. The present judgment is lo pro-
C vide reasons for the above order.

First, the facts in brief, Shri Subhan Khan, the respondent in Civil
Appeal No. 1795/96, (hereinafter referred lo as the respondent), filed the
election petition challenging the election Shri J.H. Patel, the appellant in
D C.A. 'lo. 1795196, from 158 Channagiri Legislative Assembly Comtituency
on the ground that his (respondent's) nomination paper \Vas improperly
rejected by the Retllrning officer. One Sri E. Shekharappa, a voter from
the sa1ne constituency, filed a nomination paper propo~ing the
respondent's name on October 29, 1994. The Returning Officer issued a
notice to the respondent to inake and subscribe the oath or affirn1ation
E before the date appointed for scrutiny of the nomination paper, that is,
November 3, 1994. The preceding two days i.e., November 1, 1994 &
November 2, 1994, were public holidays. The respondent came to the office
of the Returning officer on November 3, 1994 at 9.00 a.m. and took oath
under Article 173 of the Constitution of India at J0.55 a.m. before the
F Tehsildar, Channagiri Taluk. The scrutiny was to commence at 11.00 a.m.
when the respondent produced the certificate of having taken oath. The ._,.
Returning officer rejected the nomination of the respondent. Elections
were held on November 26, 1994 and on December 9, 1994 the appellant
was declared elected. The respondent challenged the election as void on
the ground that the rejection of his nomination \Vas improper. The election
G petition was contested by the appellant. The High Court held that the oath
taken on November 3, 1994, at 10.55 a.m. was not sufficient but the the
oath taken on October 27, 1994 at Davanagere Constituency, as required
by Article 173 of the Constitution of India as evidenced by Ex. P.l, although
nut brought to the notice of the Returning Officer at the tin1e of scrutiny,
H would qllalify him to contest the election from the concerned constituency.
J.H. PATELv. SUBHANKHAN[AHMADI,0.] 869

The High Court further held that the respondent was entitled to raise any A
fresh ground or produce any fresh material to prove the fact that his
nomination paper was improperly rejected and the fact the respondent did
not bring this fact to the notice of the Returning Officer would not
disentitle him to rely on the fact before the High Court. The High Court
accordingly concluded that the rejection of the nomination paper of the
B
respondent was improper and hence set aside the election.

The impugned judgment is challenged on the ground that the
decision of the High Court in accepting fresh material produced for the
first time before it was based on an erroneous understanding of the
judgments of this Court in N. T Ve/uswami Ihevar v. G. Raja Nainar and C
Othm, AIR (1959) SC 422 and Birad Mal Singhvi v. Anand Purohit, AIR
( 1988) SC 1796; that the reasoning of the High Court if accepted would
lead to absurd results as mischievous clements could then file nomination
at one place and take oath at another and later challenge the rejection of
the nomination; that the Returning Officer was right in rejecting the
nomination paper on the basis of material placed before him and that the D
plea of the respondent in the face of his unfair and improper conduct
\vould amount to misuse of the electoral process.

In the cross-objections filed by the respondent, he reiterates that the
oath taken at 10.55 a.m. on November 3, 1994 was valid and that the finding E
of the High Court lo the effect that he had not brought to the notice of
the Returning Officer about the affirmation at Davanagerc is incorrect.

From the above narration, one question of fact comes up for con-

-.
sideration, namely, \Vhether the respondent had informed the returning
Officer that he had subscribed an oath or affirmation in the prescribed F
... from in the Davanagere constituency on October 27, 1994. The questions
of law that arise for consideration are: (a) whether the oath taken at 10.55
a.m. on November 3, 1994 would suffice for the scrutiny held at 11.00 a.m.
on that very day; (b) whether the oath taken on October 27, 1994 at
Davanagere could be taken into consideration from scrutiny of the nomina- G
tion for the concerned constituency; and ( c) whether the election could be
set aside on the basis of oath of October 27, 1994 even if the question of
fact raised by the respondent is decided iri the negative.

So far as the fact in issue is concerned, \VC have to begin from the
initial flaw in the pleadings of the respondent. As pointed out by the High H
870 SUPREME COURT REPORTS [1996] ,SUPP. 3 S.C.R.

A Court, the respondent pleaded lhal he had brought to the notice of the
Returning Officer lhal he had taken oath al Davanagere but did not plead
that he had shown the certificate Ex. P. l evidencing the laking of the oath.
In fact, the best way to satisfy the Returning Oflicer about the oath was lo
present the certificate. His witnesses say that the certificate was shown. The
Assistant Returning Officer and the Returning Officer of the concerned
B constituency depose to the contrary. The order of the Returning Officer
Ex. P.4 does not make any mention of any such certificate or any informa-
tion being given by the respondent about the previous oath. No allegation
of bias has been made against the Returning Officer. We are of the opinion
that evaluation of evidence on this aspect by the High Court does not call
c for any interference and \Ve agree with the finding that the respondent ha<l

nol informed the Returning Ofliccr that he had already taken oath as
required by Article 173 of the Constitution on October 27, 1994 at
Davanagerc.

There is hardly any scope for controversy about the validity of the
D
oath taken at 10.55 a.n1. on Nove111ber 3, 1.994 \Vhich was the datt.; of
scrutiny. This C:ourt in its earlier judgn1ents in the ca:-.e of Pashupati Nath
Singh v. Hmihal' Pra.rud Singh, [1968] 2 SCR 812 and in the case of KJwje
Khanavar KJ1aderkhan Hussain Khan and Others v. Siddavanbafli Nijalin-
gappa & Anotl1e1; [1969] 3 SCR 524 has categorically held that the oath
E required by Article 173 of the Constitution of India has to be taken prior
to the date of scrutiny of the nomination paper and on the same day,
minutes before the scrutiny. This Court look note of the provisions of
Section 36(2) of the Representation of People's act, 1951 and made the
following observation :

F
"It .seems to us that the expression 11 on the date fixec.1 for scrutiny''
ins. 36(2)(a) means "on the whole of the day on which the scrutiny
of nomination has to take place.11 Jn other \vorcls 1 the qualification
must exist from the earliest moment of the day of scrutiny. It will
be noticed that on this date the Returning Officer has lo decide
G 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 dale of the
scrutiny the other candidates should be in a position to raise all
possible objections before the scrutiny of <1 particular nomination
H paper starts."
J.I-1. PATEL v. SUBHAN KHAN [AHMADI, CJ.] 871

\
We subscribe to the same view. A

However, before we proceed to the next point, we must refer lo the
decision of this Court in the case of Rani Sivantp v. Har{ Rani and Other'i,
[1983J 3 SCC 373 wherein this Court held that it was enough if the
candidate could safoly that on the dale of scrutiny he was not qualified or B
disqualilied for being chosen to fill the seal under Article 191 of the
Constitution. The High Court did not apply the ratio of this decision to the
facts of the present case as it turned on the language of Article 191 and
not Article 173 with which we are presently concerned. That is perhaps the
reason why the Court did not refer to the l\VO decisions relied on \\'hilc
deciding the case of Ran1 S1vanl]J. The two-Judge Bench in Rani ~)'ivarup's C
case could not have taken a vie\v different fron1 the vie\v taken by the
thrce-J udgl'. Benches in the earlier l\VO cases. We are, therefore, of the vic\v
on this roint the High Court's decision cannot be faulted.

There was not n1uch controversy at the Bar that the oath to be taken D
under Article 173 of the Constitution of India once taken for any con-
stituency \voulJ be valid for the election to the concerned assembly. The
earlier judgments of this Court on this point, as pointed out by the High
Court, are also to the same effect. The central controversy in the case is
the effect of non- disclosure of the fact of having subscribed an oath on an
earlier date prior to scrutiny. The earlier oath, if any, has to be subjected E
to scrutiny on the date and place lixed for the purpose. The subject matter
of scrutiny is prm;ded for the Section 36(2) of the Representation of the
People Act, 1951 :

"(2) The returning officer shall then examine the nomination F

-. papers and shall decide all objections which may be made to any
non1ination and may, either on such objection or on his O\Vll
n1otion, after such summary inquiry, if any, as he thinks necessary,
reject any non1ination on any of the follov1ing grounds :

(a) that on the date fixed for the scrutiny of nominations the G
candidate either is not qualified or is disqualified for being chosen
lo fill the seat under any of the following provisions that may be
applicable, namely :

Articles 84, 102, 173 and 191. H
872 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A Part U of this Act, and sections 4 and 14 cf the Government
of Union Territories Act, 1963 (20 of 1961); or

(b) that there has been a failure to comply with any of the
provisions of section 33 or Section 34; or

B ( c) that the signature of the candidate or the proposer on the
nomination paper is not genuinc.' 1

It can be seen that the eligibility of the candidate as per the require-
ments of Article 173 of the Constitution is squarely a matter for scrutiny.
The oath subscribed by the candidate would itself be subject lo scrutiny.
C The mere information that an oath has been subscribed could not have
fulfilled the requirement of scrutiny. Even Ex. P.1 would fall short of the
requirement. Ex. P.l is quoted below for facility of its examination:

Ex. P.l
ANNEXURE-B
D
(Certificate for receipt of Furn1 of ()ath)

(To be handed m·er lo the candidate by the authorised person)

Certified that Shri Subhan Khan (name) a candidate for elec-
E tion to the 41-Davanagere Legislative Asscn1bly Constituency has
made and subscribed the oath/affirmation as required by the
Constitution of India, before me at my office at 12-45 (hours) on
27.10.1994 (date).

Date: 27.10.1994
F
Sd/
27.10.1994
Electoral Officer
No. 41, Davanagere Assembly Constituency
G
I, the Petitioner, verify that the contents of this document
Anne,"llre-B arc true to the best of my knowledge.

sd/
Subhan Khan
H Petitioner
' JJL PATEL"- S!JBHAN KHAN (AllMADl, CLJ 873

The certificate does not reproduce the oath subscribed. The candidate A
contesting the election could not, therefore, have scrutinised the validity of
the oath and could not have raise any objection to it.

It was contended on behalf of the respondent thal he had brought to
the notice of the Returning Officer that he had taken oath in lhe B
Davanagere constituency and had shown Ex. P-1 to him. The High Court
has on an evaluation of the evidence of PWs 1 lo 4, 8 and 9 on the one
• hand, and PWs 5 and 6 on the other, come to the conclusion that this part
of the version is unacceptable. The High Court notices that there was no
averment in the petition that Ex. P.1 \Vas sho\vn, nor is there any n1cntion
about it in the order Ex. P.4 rejecting the n•Jmination. We, too, have C
carefully scrutinised the evidence and see no reason lo depart fron1 the
conclusion reached by the High Court. Therefore, this finding of the High
Court assailed in cross-appeal must be upheld.

In this situation, could the respondent be allowed to prove the factum D
and validity of the oath taken by him at Davanagerc on October 27, 1994
by an altogether fresh plea raised before lhc High Court ? Relying on two
decisions of this Court, viz., (i) N. T. Veluswami Thevar and (ii) Birad Mal
Singhvi (supra), the High Court allowed fresh plea to be raised and
concluded that the nomination was wrongly rejected which resulted in the
election of the appellant being vitiated. The question is whether the High E
Court was right in doing so.

In the first mentioned case, the facts were that the election of the
success[ul candidate was cballenged by one of the Voters of the constituen-
cy for the reason that the nomination paper of the 4th respondent had been F
wrongly rejected by the Returning Officer on the ground that he was
holding an office of profit, in that) he \Vas the Headmaster of the Govern·
ment-aided school at the relevant point of time. The contention was that
the ground on \vhich the nomination paper was rejected \Vas improper as
the 4th respondent had ceased to be a Headmaster at the time of his G
non1ination and further that he was employed in a private institution. The
appellant, the successful candidate, who was the second respondent in the
petition) contended that even if the ground on \vhich the non1ination \Vas
rejected was improper, the decision of the Returning Officer could still be
supported as the 4th respondent was interested in (Jovernment contr3cts
and had agreed to serve as a teacher under the District Board. The H
874 S[ii'REME COURT REPORTS IJ996] SUPP. 3 5.CR.

A quc~tion \Vhich arose for consideration \Vax \Vhelher in an election petition
chaHcnging the correctness of the re,iectiun of a non1ination paper under
Seel ion lllll(l)(c) of the Representation of the people Act, 1951 it was open
lo the parties tu raise grounds of disqualification other than those put
forward .before the Returning Officer. This Court held that an election
B petition is in the nature of original proceedings and not appellate proceed-
ings against the or<ler of the Returning Officer and hence the jurisdiction :
need nut be confined to one exercised by an appellate authority. The Court,
therefore, held that it was open to the successful candidate to support the
decbion of the Returning Officer on a ground different from the one on
which the nomination came to be rejected.
c
In the second mentioned case, the appellant's, Le., the successful
candidate's, election was challenged by the respondent, an elector, on the.
ground that the result of the election was materially affected by the
improper rejection of the nomination papers of three candidates, Umrao
D Ben, Hukmichand and Suraj Prakash Joshi. It was contended that Sml.
Umrao Ben was an elector in Sardarpura Constituency and the Returning
Officer wrongly rejected her nomination paper without affording her an
opportunity to produce a copy of the electoral roll; Hukmichand and Suraj
Prakash Joshi were both more than 25 years of age on the date of their
nomination and yet the Returning Officer had rejected their nomination
E papers holding them to be below 25 year of age. The mccessful candidate
contended that Cmrao Ben had failed to file a certified copy of the relevant
entry in the electoral roll of Sardarpura Constituency along with her
nomination and had further failed to produce the same for scrutiny and
therefore, the Returning Officer was justified in rejecting her nomination
F paper. As regards the other two, Hnkmichand and Suraj Prakash Joshi, he
contended that neither of them was present before the Returning Officer
al the time of scrutiny and since the entries contained in the electoral roll
indicated that they were below 25 years of age, the Returning Officer
rightly rejected their nomination papers. The High Court held that the
nomination of the first mentioned candidate was rightly rejected as she had
G failed to comply with <he statutory requirement, but in regard lo the other
two, it held that the rejection was improper as both the candidates were
above the age of 25 years. The High Court set aside the election of the
successful candidate. When the matter was heard in appeal by this Court,
the rejection of Umrao Ben's nomination was upheld. Insofar as the
H n(imination papers of the other t1vo candidates were concerned, this Courtt
'· .I.I!. l'ATFL F. SUBllAN KIJAN [AHMADI, Cl.] 875

on an examination of the 1naterial placed on rccorJ, came to the conclusion A
that the High Court's approach in evalu<:1ting the evidence concerning the
dates nf hirth \Vas \Vholly \Vrnng and hence it had con1111ittcd a serious error
in Jccepting that evidence and holding the appellant's election to be void.
It would thus be seen that even on the fresh material before the High
Court, oral as wel1 as docun1entary, the decision of the Returning ()fficer
B
could not be assailed. On the question whether the decision of the Return-
ing ()f[icer can be a:;sailed \vhcn the candidate or his agent did not re1nain
present at the tin1c of scrutiny an<l 111ure particularly \Vhen his decision on
the material then available is found to be proper, this Court held that since
the enquiry at the stage of scrutiny is of a summary nature and since the
proceedings in the High Court arc original and not appellate, it is open to c
place fresh material before the High Court to show that the rejection of
the nomination paper was erroneous. The limited purpose for placing this
decision was to show that the decision of the Returning Officer could be
challenged on grounds other than one accepted by him, by adducing fresh
evidence.
D
\Ve may mention that in Hussain Klian's case (supra), the election of
the first respondent from Shiggaon constituency was challenged on the
ground that he had made the affirmation before the Returning Officer of
the Shiggaon constituency on the date of scrutiny and not prior thereto as
required by the decision in Paslwpati Nat/l's case (supra). The first respon- E
dent sought to support the decision of the Returning Ofllcer by pointing
out that he had filed his nomination at two other places, Bagalkot and
Haspel, and had validly made allirmations at those places prior to the date
of scrutiny i.e., January 21., 1967. Thi.s atten1pt \Vas questioned on t\vo

.. grounds, namely (i) that this was a new case being set up on behalf of the
first respondent for the first time and (ii) that the affirmation in Bagalkot
F
and. Hospet could not enure Lo the benefit of the first respondent for
holding him qualified to stand for election from Shiggaon constituency. On
the first point, this Court held that since the challenge was based on
Pashupati Nath's case which itself was as new ground permitted to the G
appellants, there was no justification for debarring the first respondent
from putting forward the alternative case on the basis of the affirmations
made at Bagalkot and Haspel. On the second point, the court referred to
the evidence and come to the conc1usion that the affirmations ma<le at the
sai<l t\vo places could be used to support the decision of the Returning
Officer in regard to the acceptance of the nomination paper of the first H
876 SUPREME COURT RFPORTS ll996J SUPP. 3 S.C.R.

A respondent. It \vill, thus, be seen that in this case also, the successful
can<lidate was allowed to defend lhe decision of the Returning Officer on
a ground lhan lhe one which weighed with the Returning Officer.

From the case law discussed above, it seems clear lo us that an
election petition, being original proceedings and not appellate proceedings,
B the High Court's jurisdiction cannot be confined to the grounds on which
the Returning Officer rejected the nomination. We agree with the High ,
Court that it was not precluded from considering any other ground or fresh
material bearing on the question of the rejection of the nomination paper.
It is pertinent to note that in Veluswanli's case as \Vcll as in Hussain's case 1

C the successful candidate sought to support the Returning Officer's decision
of rejection of the nomination paper on other grounds when it was realised
that the ground on which the rejection was based was unsustainable; in
other words, the fresh grounds were set up by way of a shield and not a
s\vord. Ho\vever: in Birad Mal's case the fresh ground \Vas invoked to
D unsettle the election of the successful candidate but the attempt did not
succeed. In the present case, the situation is just the reverse, in that, it has
resulted in upsetting the election of the successful candidate.

Mr. Soli .I. Sorabjee, the learned Senior Counsel for the appellant,
contended that even if it is assumed that the candidate whose nomination
E is rejected can be permitted to question ~he correctness of the rejection on
a ground other than the one on which the rejection was founded, the Court
should be extremely circumspect about the same because of the possibility
of mischief that can be played to defeat the election if the desired result
is not achieved. He contended that as an election strategy nomination
F papers can be filed in the name of a dummy candidate at two or more
places and the oath or afflfmation as required by article 173 can be
subscribed at one place and not at other places, thus permitting the
nominations to be rejected. If at the other places the candidate of choice
wins, the dummy candidate would keep quiet but if the rival succeeds, his
election would be challenged through the dummy candidate by raising the
G plea that he had taken oath at another constituency and therefore his
nomination was wrongly rejected. If such a plea is allowed to be raised
even though he had not brought this fact to the notice of the Returning
Officer, the successful candidate who won the election after considerable
effort and expense and even personal discomfiture would find all that
H wasted for no fault of his own. Jn fact, the wrong doer, that is the person
J.H. PATEL v. SUllHAN KHAN [Al-l~WJI, CJ.] 877

who deliberately suppressed the information, \vould succeed. He, there- A
fore, submitted that the court should permit a new ground to be raised only
as a defence as in the cases of Ve/uswami and Hussain Khan (supra). He
lastly submitted that even if the court does not restrict the scope of its
jurisdiction in this behalf, it should permit it sparingly, keeping in view the
possibility of mifschief. Hdedurgcdhthathin such cahses the_ Courft hshould test .B
the bona }ides o · t11e can 1 ate w o c a11 enges t e e1ect10n o t e success·
ful candidate and ascertain if he was put up as a dummy to be used, if need
' be.

Mr. Raju Ramachandran, learned counsel for the respondent, sub·
milted that election law being a technical law, there was no room for equity. C
He submitted that the application of Pashupati Nath's case should be
confined to its own facts and Hussain Khan's case does not lay down any
law s;nce it merely follows the earlier decision without any discussion
whatsoever. He lastly contended that the respondent had gone to Bombay
on October 29, 1994 and as soon as his father who received the notice D
informed him of the same, he returned on October 31, 1994 took oath at
the earliest opportunity on November 3, 1994 since November 1, 1994 and
November 2, 1994 were admittedly public holidays. He, therefore, sub-
mitted that there was no delay on the part of the respondent.

Now let us carefully examine the facts of this case. The calendar of E
events for the General Elections case. The calendar of events for the
General Elections to the 10th Karnataka Legislative Assembly was publish-
ed on October 24, 1994. Accordingly to the said calendar the last date for
filing nomination papers was fixed as October 31, 1994, and the date for
scrutiny of the nominations was fixed as November 3, 1994. According to F

-· the respondent, he filed his nomination paper for contesting the election
from 41, Davanagere Legislative Assembly Constituency on October 27,
1994 and on the same day he took oath as required by Article 173 of the
Constitution of India. Two days later on October 29, 1994, the respondent's
name was proposed for candidature from 158, Channagiri Legislative G
Assembly Constituency by an elector. Since the respondent had not sub-
scribed an oath or affirmation as required by Article 173, the Returning
Officer gave notice on the same day reminding him to do so before the
date of scrutiny. Indisputably, the respondent took oath before the Assis-
tant Returning Officer at 10.55 a.m. on November 3, 1994, the date fixed
for scrutiny of nomination papers. In vie\v of this court's ruling in Pashupati H
878 SUPREME COURT REPORTS 11996) SUPP. 3 S.C.R.

A Nath 's case the oath taken minutes before the scrutiny was to commence
was of no avail to the respondent. The respondent's contention that he had
informed the Returning Officer that he had taken oath on October 27, ;994
when he filed his nomination for the Davanagerc constituency (two days
before his proposer tiled the nomination for the Channagiri constituency)
and that he had produced the certificate Ex. P.1 in that behalf before the
B
Returning Officer has not been accepted as proved by the High Court and
we have subscribed to that view. .'
Since we have already dealt with the case law in the earlier part of
this judgment, \VC do not consider it necessary to restate the same except
C to say that the potential for mischief as pointed out by Mr. Sorabjee is real
and not imaginary. The Court must, therefore, bear in mind this fact while
deciding whether or not lo entertain a fresh plea which was not put forward
before the Returning Officer at the time of scrutiny of the nomination
paper and the rejection thereof. The evidence.on record in the present case
D shows that both the respondent and his father were experienced persons
since they had contested assembly elections on more occasions than one.
The respondent had personally filed the nomination papers for the
Davanagcre constituency on October 27, 1994 and had also subscribed to
the oath under Article 173 of the Constitution. Of course, he withdrew his
candidature later but does not disclose whether he withdrew before the
E date cf scrutiny or thereafter. He did not file his nomination for the ,
Channagiri constituency. According to him, he had left for Bombay by the
afternoon of October 29, 1994 which shows that he had no intention to
contest from that constituency. A voter from the Channagiri constituency
known to him had proposed his name and filed the nomination papers for
F election from that constituency on October 29, 1994. He must have in-
formed the respondent or his father about the same, even if we assume the
respondent was not aware of the same before the papers were filed. The
Returning Officer sent a reminder to the respondent on that very day, i.e.,
October 29, 1994, informing him that he had failed to subscribe an oath or
·-
affirmation in respect of his nomination for the said constituency and
G should do so before the date of scrutiny. This letter was admittedly received
by the father of the respondent who must have informed him about the
same. If the father of the respondent had informed him on telephone, he
could have told his father that he had already subscribed an oath an
October 27, 1994 at Davanagerc constituency and could have instructed
H him to produce the certificate in that behalf before the Returning Officer.
.l.H. PATEL v. SUBIIAN KHAN [AHMADl,0.J 879

He claims that he returned from Bombay on October 31, 1994 and as the A
lst and 2nd of November 1994 were public holidays, he could take the oath
earliest on November 3, 1994 as soon as the office of the Returning Officer
opened for the day. A.s stated earlier that oath is of no avail. No\v, as found
on facts he did not inform the Returning Officer that he had subscribed
an oath on October 27, 1994 nor did he produce Ex. P.J before the B
Returning Officer. That is the finding of fact recorded by the High Court
to \vhich \Ve have subscribed. There was no reason for the returning Officer
not to accept the certificate Ex. P.l if it was tendered to him when he
himself had written to the respondent on October 29, 1994 to complete that
requirement. If that be so, it becomes obvious that he deliberately allowed
the rejection of his nomination paper because he knew fully well that if he
c
<lid not subscribe the oath before the date of actual scrutiny his nomination
would be rejected. He was not a serious contender for the scat of the
Channagiri constituency otherwise he would himself have filed the nomina-
tion papers as he did in the case of Davanagerc constituency. It is, there-
fore, obvious that the voter had been responsible for his nomination in the D
Channagiri constituency. From these facts it emerges that he did not inform
the Returning Officer of his having taking an oath before the Returning
Officer of Davanagere constituency on October 27, 1994 nor did he
produce Ex. P.l before the Returning Officer of Channagiri constituency.
He <lid not seek time for its production either. This backurop is sufficient E
to create a doubt regarding the bona fides of the respondent. It leaves one
with the impression that the rejection of the nomination paper was a
planned action. In any case, the respondent was himself to blame for the
rejection of his nomination papers relating to the Channagiri constituency.
Should then his omission to produce the material evidence regarding his
having taken oath at the Davanagere constituency on October 27, 1994,
F
before the Channagiri Returning Officer result in unseating the appellant,
the successful candidate ? It is not merely a question of equity but a
question of principle that a person who deliberately and designedly fails to
disclose information within his special knowledge and fails to produce
material in that behalf thereby virtually engineering the rejection of his G
nomination cannot be permitted to raise a fresh ground which would
adversely affect the opposite party. A party which does not come to court
with clean hands cannot seek such an indulgence. In the circumstances of
this case, as serious doubt arises as lo the bona fidcs of the respondent in
omitting to produce the material evidence before the Returning Officer. H
....
880 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A We feel reasonably sure thal the respondent had planned lhe rejection of
his nomination. We are, therefore, of the opinion that the High Court was
wrong in seUing aside the election of the appellant on thal ground.

Secondly, lhe mere production of the certificate Ex. P.1 on the
record of the present proceet!ings cannot satisfy the requirement of Article
B 173 of the Constitution. That certificate merely states that he had taken an
oath as required by Article 173 but what is important is the text of that
document i.e., whether it was in the prescribet! form or not. The Returning
Officer at Channagiri would have to satisfy himself that the oalh laken at
Davanagere was in the form prescribet! under Article 173 of the Constitu-
C tion and mere certificate to the effect that he had taken oath would nol
suffice. We are, therefore, of the opinion that even the production of Ex.
P.1 would not have been sufficient to invalidate the election of the appel-
lant.

These are our reasons in support of the order which we made on
D March 20, 1996. As mentioned in the said order, there shall be not order
as lo costs.

R.A. Appeal allowed.