Om Prakash v. Santosh — 1987 DIGILAW 1125 (ALL)

ORDER V.K. Mehrotra, J. - In the year 1985, general election took place for electing members to the U.P. Legislative Assembly. One such constituency for which the election took place was Chhibramau 310 Assembly Constituency in district Farrukhabad. February, 6, 1985, was notified as the last date of filing nomination, Feb. 7, 1985 as the date of scrutiny of the nomination papers and Feb. 9, 1985 as the date by which nomination could be withdrawn. The date of poll was fixed as March 5, 1985. 2. There were 38 nomination papers filed by 33 candidates. Out of them 16, candidates withdraw their nominations on the date of withdrawal. The nomination paper of one Ram Prakash Tripathi was rejected by the Returning Officer on the date of scrutiny. 16 candidates thus remained in the contest and their names found place in the list of the contesting candidates. The name of the petitioner was shown at serial No. 7 of the list. 3. The petitioner had filed a nomination paper on Feb. 1, 1985 at 1.40 P.M. before the Returning Officer in Collectorate Fatehgarh. He filed a second nomination paper on Feb. 6, 1985 at 11.45 A.M. before the Returning Officer. At 1.50 P.M. he took oath before the IVth Additional District Judge, Farrukabad in Room No. 4 of Judge's Court, Fatehgarh. The nomination paper was also accepted by the Returning Officer. According to the petitioner, no objection of any kind was raised against it by any candidate. 4. The case of the petitioner is that he had taken oath in accordance with Article 173(a) of the Constitution and the respondents to the petition had not done so because they had taken oath before they actually filed their nomination papers. Their nomination papers were, therefore, liable to be rejected by the Returning Officer at the time of scrutiny, which took: place on Feb. 7, 1985 under S. 36 of the Representation of the People Act, 1951. They should have, according to law, taken oath only after presenting their nomination papers and in any case not later than the date preceding fixed for the scrutiny, i.e. before the commencement of the date of scrutiny of he nomination papers. This, according to he petitioner, is the effect of Sections 30, 32 and 6 of the Representation of the People Act, 1951. 5. This, according to he petitioner, is the effect of Sections 30, 32 and 6 of the Representation of the People Act, 1951. 5. The petitioner filed similar objection against the nomination papers of the respondents to this petition. The objection was erroneously rejected by the Returning Officer by his order of Feb. 7, 1985. The petitioner says that the nomination papers of all the respondents were liable to be rejected and that a declaration should have been made in his favour as the only valid nomination paper was that of the petitioner. The petitioner also alleged that the first respondent (Sri Santosh) was wrongly declared as returned candidate on March 7, 1985. This declaration was liable to be set aside and the petitioner was liable to be declared elected as he was the only candidate who had filed a valid nomination paper. 6. In respect of first respondent, the specific allegation of the petitioner is that the certificate of oath or affirmation filed by the first respondent contained an endorsement of time as 13.15 hours i.e. 1.15 P.M. on Feb. 6, 1985. The nomination paper had been filed by the first respondent on Feb. 6, 1985 at 13.17 hours i.e. 1.17 P.M. The position, therefore, was that the oath, which 'the first respondent took was prior to the filing of the nomination papers and the first respondent presented a certificate of his oath before the Returning Officer prior to the delivery of nomination paper to him. 7. In respect of the second respondent (Chhotey Singh Yadav) as well it has specifically been asserted that the oath/affirmation was signed by him on Feb. 6, 1985 at 13.30 hours i.e. 1.30 P.M. U.P. or to the filing of nomination paper at 13.32 hours i.e. at 1.32 P.M. on the same day. 8. The election petition was presented in this Court on April 10, 1985, Apart from Sri Santosh (who is the returned candidate) and Sri Chhotey Singh Yadav, who are impleaded as respondents 1 and 2, the other contesting candidates have also been impleaded as respondents in this petition. On notice being issued to the respondents, the returned candidate came forward to contest it. He has filed a written statement. It has been asserted in the written statement that the election petitioner was not a candidate in the election to 310 Chhibramau Assembly Constituency. On notice being issued to the respondents, the returned candidate came forward to contest it. He has filed a written statement. It has been asserted in the written statement that the election petitioner was not a candidate in the election to 310 Chhibramau Assembly Constituency. He had not filed any nomination in the said election. It has also been asserted that the first respondent had filed his nomination paper- and had taken the oath before the Returning Officer in accordance with the provisions of Constitution and in fact there was no time lag between the two actions so that there was no contravention of Article 173 of the Constitution. 9. The nomination paper of the first respondent had been, according to his case, rightly accepted. It has further been asserted that the petitioner has not demonstrated as to how the result of the election, so far it concerned the returned candidate is materially affected and as such no relief could he granted to the petitioner. 10. The petitioner has filed a detailed replication. 11. The second respondent (Sri Chhotey Singh Yadav) also filed a written statement denying the stand taken by the petitioner. Replication to it has also been filed by the petitioner. 12. An application for striking off the pleadings and for dismissing the election petition as disclosing no cause of action made by the first respondent was, after hearing at length, dismissed by this Court on Feb. 3, 1986. Thereafter, issues were framed in the case on July 30, 1986. The issues are these : 1. Whether the petition is liable to be dismissed under S. 86 of the Representation of the People Act for non-compliance of S. 81 of the said Act? 2. Whether the petitioner was a candidate as defined under S. 79-B of Representation of the People Act? 3. Whether Dr. O.P. Verma was entitled to file the present election petition? 4 Whether the petitioner has filed any valid nomination paper or not? 5. Whether the nomination paper of respondent No. 1 was improperly accepted by the Returning Officer? 6. Whether candidates other than the petitioner were disqualified to contest the election in question in view of the principle laid down by the Supreme Court in the case of Pashupati Nath Singh v. Harishar Prasad Singh, AIR 1968 SC 1064 ? 7. 5. Whether the nomination paper of respondent No. 1 was improperly accepted by the Returning Officer? 6. Whether candidates other than the petitioner were disqualified to contest the election in question in view of the principle laid down by the Supreme Court in the case of Pashupati Nath Singh v. Harishar Prasad Singh, AIR 1968 SC 1064 ? 7. Whether the nomination papers of candidates other than the petitioner were improperly accepted by the Returning Officer at the time of scrutiny? 8. To what relief, if any, is the petitioner entitled? 13. Recording of evidence commenced on Oct. 24, 1986. Two witnesses were examined on that date and after the conclusion of cross-examination of second witness on Jan. 20, 1987, when the petitioner wanted to examine himself as the third witness, an application (paper No. A-108) was moved on behalf of the first respondent objecting to his production as a third witness on account of R. 3-A of O. XVIII of the Civil P.C. This objection was disposed of by a detalied order of this Court. The first respondent assailed it before the Supreme Court but by its order of March 2, 1987, the Supreme Court dismissed the special leave petition (petition for Special Leave to Appeal (Civil) No. 2073 of 1987). Evidence on behalf of the petitioner was then recorded on April 8 and 9, 1987 where after the first respondent examined himself as a witness on May 13, 1987. Arguments were then heard in the case in July, 1987. 14. The evidence on behalf of the petitioner consists of P.W. 1 Sri Sia Ram, Senior Clerk, District Election Office, Farrukahabad, P.W. 2 Sri R.P. Singh, Returning Officer and P. W. 3 Dr. O. P. Verma, the petitioner. 15. The first respondent examined himself as the sole witness in support of his case. 16. The basic question on which the learned counsel for the parties concentrated during the conduct of the petition, as the principal question, was whether the election petitioner had actually filed nomination papers and was a candidate in the election or not? The first respondent and his learned counsel took the stand that the present ,petitioner had neither filed any nomination paper nor was a candidate. The determination of this question is, therefore, necessary in the first instance. 17. The first respondent and his learned counsel took the stand that the present ,petitioner had neither filed any nomination paper nor was a candidate. The determination of this question is, therefore, necessary in the first instance. 17. In para 6 of the election petition, the assertion is that the petitioner was an independent candidate and had been allotted 'ELEPHANT' as election symbol. In para 7 of the petition, it has been stated that the petitioner filed his nomination paper on Feb. 1, 1985 before the Returning Officer in the Collectorate, Fatehgarh at 1.40 P.M. Schedule 3, with the petition, has been described as the receipt of the nomination paper filed by the petitioner. In the following para 8 of the petition, it has been claimed that a second nomination paper was also filed by the petitioner on Feb. 6, 1985 at 11.45 A.M. and numbered as Nomination No. 9/1. Schedule 4 to the petition is stated to be the receipt of this nomination paper. , 18. The case of the petitioner in para9 of the petition is that on Feb. 6, 1985, after filing the nomination paper, he took oath before the IVth Additional District Judge, Farrukhabad in Room No. 4, Judges Court, Fatehgarh at 1.50 P.M. The original certificate of oath (of which certified copy has been filed as Schedule 5 to the petition) was delivered to the Returning Officer on Feb. 7, 1985 at the time of scrutiny and that the nomination paper of the petitioner was duly accepted by the Returning Officer as it was in accordance with law and no objection of any kind was filed to it by any of the candidates. This is what has been stated in paras 10 and 11 of the election petition. 19. In the written statement, which the first respondent has filed, the assertions made in the election petition have been denied in paras 6 to 11 of the written statement except for the statement made in para 7 of the election petition about the filing of nomination paper by the petitioner on Feb. 1, 1985 at 1.40 P.M. which in para 7 of the written statement is stated to be 'not denied'. 1, 1985 at 1.40 P.M. which in para 7 of the written statement is stated to be 'not denied'. In para 44 of the written statement, it has, inter alia, been asserted "that the present petition has been filed by the election petitioner alleging himself to be a candidate in the aforesaid election whereas from the facts stated in the election petition he cannot be said to be a candidate and as such election petition at the instance of the election petitioner is not maintainable." Further, the petition was liable to be dismissed for non-compliance of the provisions of S. 81 of the Representation of the People Act, 1951 as it had not been presented by a candidate. In some paragraphs of the additional pleas contained in the written statement, the first respondent has disclosed his stand in the following words : "48.' That, the election petitioner has filed his nomination paper as alleged on 1-2-1985 at 1.40 P.M. and along with the aforesaid nomination paper no certificate of oath of allegiance is filed. In fact election petitioner has not filed any nomination in the said election." "49. That another nomination paper was filed by the petitioner as alleged on 6-2-1985 at about 11.45 A.M. Along with this nomination paper also no certificate of oath of allegiance was filed till the close of the time for filing nomination paper on 6-2-1985. As stated above in fact election petitioner did not file any nomination in the said election." "51. That the petitioner cannot be said to be a candidate within the meaning of word used under Sections 32 and 33 of the Representation of the People Act." "52. That the election petitioner cannot be said to be a candidate in the aforesaid election." "53. That since the election petitioner was not a candidate in the aforesaid election the L present election petition at his instance is not maintainable inasmuch as the election petition has not been presented by a candidate as required under S. 81 of the Representation of the People Act." 20. In the replication, apart from reiterating the contents of various paragraphs of the election petition, it has been reasserted in paras 49, 50, 52 and 54 of the replication that the petitioner had filed his nomination paper and had taken the oath on Feb. In the replication, apart from reiterating the contents of various paragraphs of the election petition, it has been reasserted in paras 49, 50, 52 and 54 of the replication that the petitioner had filed his nomination paper and had taken the oath on Feb. 6, 1985 at 1.50 P.M. This nomination paper was duly accepted by the Returning Officer so that the petitioner was a candidate from the constituency. It has also been asserted that the objection of the nature raised in these paras had been raised by the first respondent before this Court which had been duly considered and rejected on Feb. 3, 1986 by a detailed order passed by this Court. 21. The order dated Feb. 3, 1986 is of brother V.P. Mathur, J. to whom this petition was assigned for trial earlier. A perusal of this order shows that the question about the identity of the present petitioner being a candidate at the election was not in issue between the parties. The above order disposed of the plea raised on behalf of the first respondent that the election petition did not disclose material facts nor did it mention in detail particulars in support of those facts so that paras 3 to 35 of the election petition were liable to be struck off under R. 16 of 0. VI of the Civil P.C. Further, in case the prayer was allowed, there would survive no cause of action for trial of the petition as there would be no triable issue to be framed on the basis of the remaining assertions made in the election petition and that, therefore. the petition deserved to be dismissed without trial as disclosing no cause of action under R. 11 of O. VII of the Civil P.C. This court felt that no part of the pleading contained in the election petition deserved to be struck off nor was the petition liable to be dismissed under O. VII, R. 11 of the Civil P.C. It is obvious that the question will have to be gone into its merits now. 22. The Returning Officer, Sri R.P. Singh, who appeared before the Court as P.W. 2, mentioned in his statement that in the list of candidates, whose nominations were found to be valid by him (paper No. A-55/8)' prepared under his signature on Feb. 22. The Returning Officer, Sri R.P. Singh, who appeared before the Court as P.W. 2, mentioned in his statement that in the list of candidates, whose nominations were found to be valid by him (paper No. A-55/8)' prepared under his signature on Feb. 7, 1985, were the names of Sri Om Prakash son of Nathu Ram, resident of Gorhiya Meerapur, Om Prakash son of Sri Ram Singh, resident of Hotepur and Om Prakash son of Vidya Sagar or Mohalla Birtia, Chhibramau at serial Nos. 5,6 and 7. He also stated that Om Prakash son of Nathu Ram and Om Prakash son of Vidya Sagar, withdrew their candidature and their names occurred in paper No. A-55/11, which is a copy of Form VI containing the names of the persons who had withdrawn their candidature. According to the Returning Officer, no application for withdrawal of his candidature was given by Om Prakash son of Ram Singh, resident of village Hotepur. 23. The Returning Officer has also stated that Om Prakash son of Ram Singh, resident of Hotepur had filed one nomination paper on Feb. 1, 1985 at 1.40 P.M. and the other on Feb. 6, 1985 at 11.45 A.M. Exts. A-62 and A 63 are the certified copies of these two nomination papers, paper No. A-22 is the original receipt which was issued under his signature to Sri Om Prakash, son of Sri Ram Singh in token of deposit of a sum of Rs. 250/- as security money for contesting the election of 310 Chhibramau Assembly constitutency. According to the Returning Officer, he had verified from the electoral roll before accepting the nomination paper of Om Prakash, son of Ram Singh that his name was entered at serial No. 124 in the electoral roll of Assembly Constituency 313 Kaimganj. This person had filed the affirmation of oath Ext. A- 64 before him at the time of scrutiny of nomination which disclosed that he had taken oath on Feb. 6, 1985 in Room No. 4 of Judges Court at Fatehgarh at 1.50 P.M. 24. According to the Returning Officer, an application (paper No. A-55) had been made before him on Feb. 9, 1985 by Om Prakash son of Sri Ram Singh for recording his name as Dr. O.P. Varma. 6, 1985 in Room No. 4 of Judges Court at Fatehgarh at 1.50 P.M. 24. According to the Returning Officer, an application (paper No. A-55) had been made before him on Feb. 9, 1985 by Om Prakash son of Sri Ram Singh for recording his name as Dr. O.P. Varma. He did not remember whether this application had been given to him by the person who had applied for the change of his name personally or through a lawyer. The application was allowed by an order of Feb. 9, 1985 itself. According to the answer given by him during his cross- examination by Sri A. Kumar, learned counsel for the first respondent, the Returning Officer has stated that he knew Sri Om Prakash son of Sri Ram Singh resident of village Hotel personally from about the time when the elections were to be held because he used to visit his place frequently in connection with thee lections and was also related to the former M.L.A. of the constituency. He further stated in the cross-examination that of the various reasons who had filed their nominations, he knew some personally. He gave out that he knew Sri Santosh, the first respondent, Umesh Awasthi, Pratap Singh, Ram Bilash Tripathi and Dr. O.P. Varma personally. The Returning Officer told this Court that as far as he recollected, he had acted on the statement made by Om Prakash son of Sri Ram Singh himself while permitting him to change his name as Dr. O.P. Varma and had not made any other enquiry to ascertain the correctness of the claim made by Sri Om Prakash. He was better known as Dr. O.P. Verma in the area. 25. While in the witness-box as P.W. 3, the petitioner described himself as Dr. O.P. Varma alias Om Prakash. According to him, the nomination papers had been handed over by him personally to the Returning Officer. The petitioner, according to his statement, was known as Dr. O.P. Varma in the constituency from where he had contested the election. The Returning Officer had allowed his application for his name being mentioned as Dr. O.P. Varma by an order of Feb. 9, 1985 when he had made that application, (Ext. P-37 being the application and the order passed thereon), and that he canvassed in his constituency as Dr. O.P. Varma. The Returning Officer had allowed his application for his name being mentioned as Dr. O.P. Varma by an order of Feb. 9, 1985 when he had made that application, (Ext. P-37 being the application and the order passed thereon), and that he canvassed in his constituency as Dr. O.P. Varma. During his cross-examination by the learned counsel, appearing for the first respondent, the petitioner stated that he was the son-in-law of Sri Radhey Shyam Verma, a member of the Lok Dal who was the sitting M.L.A. of 310 Chhibramau Constituency. Sri Radhey Shyam Verma had been denied the Lok Dal ticket in 1985 Assembly elections. He also filed his nomination paper from the same constituency in that election. 26. The petitioner denied the suggestion that he had accompanied Sri Radhey Shyam Verma when he had gone to file his nomination paper or that the Returning Officer knew him only because he was the son-in-law of the sitting M.L.A. Sri Radhey Shyam Verma. The petitioner claimed that Sri R.P. Singh was the Sub Divisional Magistrate in Chhibramau and being a social worker, the petitioner came to know him, from before the election. 27. The petitioner has stated that when he presented his application for alteration of his name before the Returning Officer, he was asked by him whether the facts shown were correct and upon the answer in the affirmative, the Returning Officer allowed the application. It is thereafter that the petitioner started his canvassing over which he spent about Rs. 3000-4000/-. The petitioner candidly acknowledged that in the application made by him for the alteration of his name, he had described himself as Dr. O.P. Varma and that his signature on the application was as 'Om Prakash' and not as 'O.P. Varma'. He explained that as he had-made a prayer for the change of his name to Dr. O.P. Varma in his own handwriting he had signed the application as Om Prakash. 28. In the two nomination papers of the petitioner filed on Feb. 1 and 6, 1985 respectively, his candidature was proposed by two different persons. In the first, the proposer was Ram Sewak and in the second, it was Jai Narain. The nomination papers were filed by the petitioner before the Returning Officer personally. This finds corroboration from the statement to that effect made by the Returning Officer. 1 and 6, 1985 respectively, his candidature was proposed by two different persons. In the first, the proposer was Ram Sewak and in the second, it was Jai Narain. The nomination papers were filed by the petitioner before the Returning Officer personally. This finds corroboration from the statement to that effect made by the Returning Officer. The nomination papers of the petitioner were found to be valid by the Returning Officer and no objection was raised. 29. In the effort to establish that the petitioner was a person different from O.P. Varma who had filed the objection to the nomination papers filed by all other candidates, learned counsel for the first respondent, put searching questions to both the petitioner and the Returning Officer. The petitioner stated in his cross-examination that he had filed objections against the- nominations filed by the other 32 candidates (excluding himself) including the first respondent and that schedule 6 filed along with the election petition was a copy of the main objection which he had filed. The objection had been filed under the signature of Sri Kailash Behari Hajela, Advocate. The objection was filed on behalf of Om Prakash son of Sri Ram Singh and had been signed both by Sri Hajela and himself, the petitioner having signed it as O.P. Varma. The Returning Officer has told the Court that paper No. A 102 was the objection filed on behalf of the petitioner to the nomination paper of the first respondent and that similar objection had been filed on behalf of the petitioner in respect of all other nomination papers. These had been disposed of by him by a common order contained in paper A-103. He has also told the Court that Om Prakash son of Sri Ram Singh, resident of Hotepur is the same person and his name appears as Dr. O.P. Varma at serial No. 7 in paper A-104 which is a copy of the list of contesting candidates in Form VIII-A. 30. In his own statement, the first respondent Sri Santosh has stated that he knew Sri Ram Singh, resident of Hotepur of Tehsil Kaimganj and further that the son of Sri Ram Singh was married to the daughter of Radhey Shaym Varma, who was the sitting M.L.A. from Chhibramau Assembly Constituency. He, however, stated that no son of Sri Ram Singh is known as Om Prakash alias Dr. He, however, stated that no son of Sri Ram Singh is known as Om Prakash alias Dr. Om Prakash and that Sri Om Prakash son of Sri Ram Singh was an agriculturist. The first respondent, during his cross- examination, was confronted with Ext. P-35 (paper No. A-55/8), which is the list of validly nominated candidates and stated that at serial No. 6 in the list was the name of Om Prakash son of Ram Singh of Hotepur and further that in the list of candidates who had withdrawn (paper having been admitted on behalf of the first respondent by his learned counsel) did not contain the name of Om Prakash son of Ram Singh of village Hotepur. He further evaded by saying that in the absence of the mention of parentage in the list of validly nominated candidates, (Ext. 36) it was difficult to say whether Dr. O.P. Varma, resident of village Hotepur mentioned in it, was the same person as Om Prakash son of Ram Singh of village Hotepur, mentioned in Ext. P-35 (list of validly nominated candidates). While acknowledging that he had come to know Dr. O.P. Varma only after filing of the election petition and also saying that he did not know personally Sri Orn Prakash son of Sri Ram Singh, the firs' respondent asserted-that as far as he knows, Om Parkash son of Sri Ram Singh is not the same person as Dr. O.P. Varma. He also said that he did not know the name of Dr. O.P. Varma. The first respondent also said that he could make no comment upon the question whether the list Ext. P-36 (list of contesting candidates) had been rightly or wrongly drawn-up by the Returning Officer. The Returning Officer, as seen earlier, categorically stated that Om Prakash son of Ram Singh, resident of village Hotepur was the person who had been described in the list of the contesting candidates as Dr. O.P. Varma and allotted the symbol of 'ELEPHANT'. The change of name, prayed for by Om Prakash to Dr. O.P. Varma was, according' to the statement of the Returning Officer, permitted when he felt satisfied that the person was generally known in the area by the name which he wanted to be incorporated subsequently. 31. O.P. Varma and allotted the symbol of 'ELEPHANT'. The change of name, prayed for by Om Prakash to Dr. O.P. Varma was, according' to the statement of the Returning Officer, permitted when he felt satisfied that the person was generally known in the area by the name which he wanted to be incorporated subsequently. 31. The totality of the evidence and the circumstances appearing in it, clearly shows that it was the present petitioner who had filed his nomination as Om Prakash son of Sri Ram Singh of village Hotepur and had applied for and was permitted to alter his name as Dr. O.P. Varma. The objection that the petitioner is not the person who had actually filed his nomination paper for the election to 310 Chhibramau Assembly Constituency or had contested it as a candidate in the year 1985 and was, therefore, not entitled to file the present election petition, is unworthy of credence. 32. The next question upon which attention was focussed by the learned counsel was about the time at which the election- petitioner and the first respondent took the oath/affirmation and the time at which their nomination papers were presented before the Returning Officer. In other words, the sequence in which the nomination paper and the form of. oath/affirmation, was filed by them. The provisions, relevant to this aspect of the matter may first be noticed. 33. Section 33 of the Representation of People Act, 1951, deals with the presentation of nomination papers and requirements for a valid nomination. Section 36 relates to the scrutiny of nominations. Sub-sec. (2) of S. 36 says that the Returning Officer may reject any nomination paper, inter alia, on the ground that on the date fixed for the scrutiny of nominations, the candidate is not qualified or is disqualified for being chosen to fill the seat, amongst others, under Article 173 and 191 of the Constitution. A look at Article 173 of the Constitution shows that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set o ut for the purpose in the Third Schedule. Form VII A is the form of oath or affirmation to be made by a candidate for election to the Legislature of a State. It is in the following words : "I, A.B., having been nominated as a candidate to fill a seat in the legislative Assembly (or Legislative Council), do swear in the name of God 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." 34. The essential requirements, as is clear from the language, are that, (a) the person taking the oath or making affirmation must have been nominated as a candidate to fill a seat in the Legislative Assembly, (b) that he will bear true faith and allegiance to the Constitution of India as by law established, and (c) that he will uphold the sovereignty and integrity of India. 35. In a Handbook for Candidates prepared by the Election Commission of India in 1982, the question of oath or affirmation by candidates has been dealt with in para7 of Chapter-11. The relevant instructions contained in this para are as under : (i) The oath or affirmation should be made and subscribed before the date fixed by the Election Commission for scrutiny of nomination papers at that election, the candidates are advised to take the oath immediately after the presentation of their nomination papers and, in any case, not later than the date previous to the date of scrutiny. (ii)The oath or affirmation is to be made in person before the authorised officer. (iii) It is not necessary that the oath or affirmation should be taken more than once even if a candidate is nominated from more than one constituency at a general election. (iv) The oath or affirmation has first to be made and then signed by the candidate before the authorised person. (v) The authorised person should endorse on the form that the oath has been made and subscribed by the candidate on that day and give a certificate to the candidate to that effect. (vi) It is the responsibility of the candidate to see that the original oath or affirmation is produced before the returning officer at or before the time fixed for the scrutiny of nomination papers. (vi) It is the responsibility of the candidate to see that the original oath or affirmation is produced before the returning officer at or before the time fixed for the scrutiny of nomination papers. (vii) The onus of proving that the candidate had made and subscribed the oath before a competent authority rests on him. He or his representative should be able to satisfy the Returning Officer at the time of scrutiny that he had made and subscribed the oath before an authorised office for that particular election. 36. The Supreme Court has dealt with Article 173(a) of the Constitution in several decisions. Most of the aforesaid prepositions are based on its decision in Pashupati Nath Singh v. Harihar Prasad Singh, AIR 1968 SC 1064 and K.K. Hussain Khan v. S. Nijalingappa, AIR 1969 SC 1034 . In Shaikh Abdul Rehman v. Jagat Ram Aryan, AIR 1969 SC 1111 , the Supreme Court dealt with requirements of Article 173(a) of the Constitution of India as contained in S. 51(a) of the J. & K. Constitution. 37. The plea of the election-petitioner about this aspect of the case is contained in several paragraphs of the election petition. So far as it relates to all the respondents to the petition, it is contained in paragraph 21 which says "that all the respondents in the present petition took oath before filing their nomination papers and as such the nomination papers filed by the respondents ought to have been rejected by the Returning Officer at the time of scrutiny which took place on 7-2-1985." 38. In respect of the first respondent Sri Santosh, the specific plea contained in paras 24 and 25 of the election petition is that the oath or affirmation certificate in respect of the first respondent dated 6-2-1985, signed by the fast respondent and the Returning Officer, shows the time noted as 13.15 hours, i.e. 1.15 P.M. which shows that the alleged oath was signed prior to the filing of the nomination paper i.e. the oath was presented to the Returning Officer on 6-2-1985 before the delivery of nomination paper so that the nomination of the first respondent was invalid. 39. 39. In the written statement filed by him, the first respondent has apart from denying the assertions made in paras 21, 24 and 25 of the petition in para 21, 24 and 25 of the written statements averred in para 46 by way of additional pleas that he had filed nomination. paper and took oath before the Returning Officer in accordance with the provisions of the Constitution and, in fact, there was no time lag between the two actions and as such it cannot be said that there was any contravention of Article 173 of the Constitution. In the replication, the election petitioner has reiterated what was said by him in the election petition. In para 48 of the replication, however, it was specified that the defect pointed out on behalf of the petitioner in regard to the nomination paper of the first respondent was that the nomination paper had been filed on 6-2-1985 at 13.17 hours i.e. at 1.17 P.M. while the certified copy of the oath certificate in regard to him was of 6-2-1985 in which time was noted as 13.15 hours i.e. 1.15 P.M. The time was noted by the Returning Officer and the document was signed by the first respondent which clearly showed that the first respondent had taken the oath two minutes before the filling of his nomination paper. 40. Sri R.P. Singh, Returning Officer, P.W. 2, stated before the Court that paper No. A-65 was. the form of oath which was filed before him by the first respondent. It had been filed before him on 6-2-1985 at 13- 15 P.M. and he had made a note about it on the form. The endorsement was made by him at the time when the form was filed before him. The witness clarified during his cross-examination by the learned counsel appearing for the first respondent that he had the forms of oath of all the persons who had filed their nominations by the date of scrutiny of the nomination papers. He also said that he had disposed of all the objections by a common order (paper No. 103). To quote the words of the witness himself : "Paper No. A-103 shown to me is the common order by which I have disposed of all the objections to the various nomination papers which had been filed. He also said that he had disposed of all the objections by a common order (paper No. 103). To quote the words of the witness himself : "Paper No. A-103 shown to me is the common order by which I have disposed of all the objections to the various nomination papers which had been filed. In this order, I had mentioned that there was no time lag between the delivery of the nomination papers and taking of oath. As mentioned in the same order in continuation of that sentence I had inferred that the delivery of nomination paper and taking of oath was part of the same transaction. What I wish to convey by that statement in the order was that the two transactions were contemporaneous....." 41. In his own statement as D.W. 1, the first respondent Sri Santosh, stated before this Court that he had filed three nomination papers on Feb. 6, 1985 which were presented before the Returning Officer together and after it, the Returning Officer gave him form for oath to be subscribed by him. The respondent then said that he took the oath. The Returning Officer filled the form of oath and thereafter the respondent left the room of the Returning Officer. During his cross- examination by the learned counsel, appearing for the election-petitioner, the first respondent stated that he had presented the three nomination papers before the Returning Officer after 1.00 P.M. on Feb. 6, 1985 though he could not give the exact time now. When the attention of the first respondent was drawn to the certified copy of the certificate of oath relating to his candidature (paper No. A-65, marked as Ext. P.-42), he said in his answer to a question put by the learned counsel for the petitioner that this document did not indicate the authority before whom the respondent had subscribed the oath but the fact was that he had subscribed it before the Returning Officer. He also said that there was no time lag between the handing over of the nomination papers by him and his subscribing oath. These were parts of the same transaction. In answer to a further question, the first respondent said that at the time of giving of his evidence, he did not recollect whether he took the oath or made solemn affirmation. These were parts of the same transaction. In answer to a further question, the first respondent said that at the time of giving of his evidence, he did not recollect whether he took the oath or made solemn affirmation. In further cross-examination, the first respondent reiterated that he took oath before the Returning Officer after filing his nomination papers and denied as absolutely wrong the suggestion that he did not subscribe the oath or affirmation before any authorised officer or that he did so before the filing of the nomination papers. 42. In his order dated Feb.7,1985, Ext. P-34 (paper No. A-103), disposing of the identical objections filed on behalf of the petitioner to the nomination papers of the respondents, the Returning Officer has clearly stated that the oath had been subscribed in presence of Returning Officer as was clear from the certificate of oath and that there was no time lag between the filing of the nomination papers and the taking of oath which showed that taking of oath and the filing of the nomination papers were contemporaneous events. This has also been asserted by the Returning Officer in his statement before this court. The election-petitioner has not claimed any personal knowledge about the sequence of the events, namely, the filing of nomination papers and subscribing of oath and affirmation by the respondents, including the returned candidate. The statement of the returned I candidate is that he had subscribed his oath/ affirmation after filing his nomination papers. There is no reason to doubt this statement particularly when it finds full an clear corroboration from the statement o P.W. 2, Sri R.P. Singh, the Returning Officer, who says that the filing of nomination and taking of oath were almost of the same transaction and there was no time lag between them. The Returning Officer as well as the first respondent were candid in their answer to the question, put to them in the cross- examination. The edifice of the case of the election-petitioner, as far as this aspect of the matter is concerned, seems to rest, as regards the first respondent, upon the fact that 13.15 is the time noted in Ext. P.-42 (paper A-65) on the certificate of oath while 13.17 is noted one the nomination paper (paper No. A-66). The edifice of the case of the election-petitioner, as far as this aspect of the matter is concerned, seems to rest, as regards the first respondent, upon the fact that 13.15 is the time noted in Ext. P.-42 (paper A-65) on the certificate of oath while 13.17 is noted one the nomination paper (paper No. A-66). The inference that the election petitioner wishes this Court to draw from these circumstances is that the oath had been subscribed by the first respondent prior to the filing of his nomination papers. In view of the statements on oath made before the Court, both by the Returning Officer Sri R.P. Singh (P.W. 2) and the first respondent Sri Santosh, which deserve to be accepted also because of the absence of any evidence o n the record to the contrary of a person having personal knowledge about the sequence of the filing of nomination papers and subscribing of oath/ affirmation by the first respondent, it must be held that the filing of nomination papers by the first respondent and subscribing of oath/affirmation were almost contemporaneous and that the filing of nomination preceded the taking of oath. 43. On the aforesaid facts, it is clear that no invalidity attached to the nomination of the first respondent and that no error was committed by the Returning Officer in accepting the nomination papers filed by the first respondents valid on their scrutiny. 44. The basis on which the election petitioner characterises the nomination papers of all the respondents to have been improperly accepted having been found unsustainable, on facts, it is clear that three of the issues, namely, issues Nos. 5, 6 and 7 deserve to be answered against the election-petitioner and in favour of the respondents. 45. The requirement of law in this respect, as laid down by the. Supreme Court in Pashupati Nath Singh v. Harihar Prasad Singh, AIR 1968 SC 1064 (supra) is that the effect of S. 36(2)(a) of the Act was that the oath or affirmation must be before the date fixed for scrutiny so that the candidates possess the qualification under Article 173(a) of the Constitution, on the date on which the scrutiny of nomination has to take place. This is what the Supreme Court said in Hussain Khan's case, AIR 1969 SC 1034 . This is what the Supreme Court said in Hussain Khan's case, AIR 1969 SC 1034 . There is no dispute that the first respondent, who is the returned candidate, subscribed oath or affirmation on Feb. 6, 1985. The date of scrutiny was Feb 7, 1985. The Supreme Court did not depart from the principles laid down by it in these cases in its decision in Sheikh Abdul Rahmah v. Jagat Ram Aryan, AIR 1969 SC 1111 . In that case, Jan. 20, 1967 was the last date for filing the nomination papers while the date of scrutiny of nomination papers was Jan. 23, 1967. The High Court found that the two persons, whose nomination papers had been rejected, namely, Narain Dass and Nikkha Ram, had not signed the oath forms before the Assistant Returning Officer nor did they make the' oath or affirmation before him. This finding was affirmed by the Supreme Court when hearing an appeal against the judgment of the High Court. The conclusion of the High Court that on the date fixed for scrutiny of nominations, these persons were not qualified to be chosen to fill the seat in the legislature and their nomination papers were liable to be rejected, as was done by the Returning Officer, was upheld. There is nothing in this decision of the Supreme Court which may be said to be assistance to the election petitioner the present petition. 46. My conclusion in respect of the various issues is as follows : Issue No. 1 is answered in the negative. Issue No. 2 is answered in the affirmative. Issue No. 3 is answered i n the affirmative. Issue No. 5 is answered in the negative. Issue No. 6 is answered in the negative. Issue No. 7 is answered in the negative. 47. In view of what has been held earlier, it is not necessary for the disposal of the present election petition, to record any conclusion about issue No. 4, namely, whether the petitioner had filed any valid nomination paper or not because the answer to this issue either way, will not affect the ultimate decision in the election petition. 48. Issue No. 8 is answered against the petitioner by holding that he is entitled to no relief in the election petition. 49. After the judgment had been reserved in this petition on July 27, 1987 an application (paper no. 48. Issue No. 8 is answered against the petitioner by holding that he is entitled to no relief in the election petition. 49. After the judgment had been reserved in this petition on July 27, 1987 an application (paper no. A-59) was moved on behalf of the first respondent on Aug 14, 1987 that in another Election Petition No. 24 of 1985 filed by one Ram Prakash Tripathi in respect of election to 310 Chhibramau Assembly Constituency, this Court had declared the election of the first respondent to be void by its judgment dated Aug 12, 1987. As such, the present election petition had become in fructuous. The parties prayed for and were allowed opportunity to exchange affidavits. Their learned counsel were also heard in respect of this application. Orders on the application were reserved on Oct 27, 1987. 50. During the course of their submissions on this application, the learned counsel confined themselves only to the legal aspect of the matter. Sri A. Kumar, appearing for the first respondent, urged that under S. 100 of the Representation of the People Act, 1951 the election of the returned candidate may be declared to be void by the High Court, inter alia, on its satisfaction that the result of the election in so far as it concerns a returned candidate, has been materially affected by improper acceptance of any nomination. This satisfaction could only be recorded at the conclusion of the trial of the petition and if at that stage, there was no returned candidate due to his election having been declared to be void earlier. The High Court could not grant a fresh declaration about the election of the returned candidate having become void. Sri Kumar invited my attention, in particular, to Sections 98, 99, 103, 106 and 107 of the Act for his submission that the declaration of an election being void takes effect immediately as soon as the order is pronounced by the High Court. Thereafter, another declaration cannot be superimposed over it in a subsequent election petition. 51. Sri Kumar invited my attention, in particular, to Sections 98, 99, 103, 106 and 107 of the Act for his submission that the declaration of an election being void takes effect immediately as soon as the order is pronounced by the High Court. Thereafter, another declaration cannot be superimposed over it in a subsequent election petition. 51. When confronted with the provisions contained in S. 116B(3) of the Act which says that when the operation of the order is stayed by the High Court or as the case may be, the Supreme Court, the order shall be deemed never to have taken effect under sub-sec.(1)of S. 107, Sri Kumar urged that the legal fiction enshrined in this clause is only confined to S. 107(1) of the Act which says that subject to the provisions contained in Chapter IVA relating to the stay of operation of an order of the High Court under S. 98 or S. 99, every such order shall take effect as soon as it is pronounced by the High Court and not to the declaration contemplated by S. 98 of the Act which operates forthwith as a declaratory decree. He further urged that Sections 107,116B(3), and 150 (which deals with a casual vacancy in a State Legislative assembly) form part of a complete Code and provisions of S. 116B(3), in so far as they provide for the legal fiction, cannot be extended beyond these provisions. 52. Sri Kumar attempted to draw support from the observation made by the Supreme Court in Vidya Charan Shukla v. Purshottom Lal Kaushik, AIR 1981 SC 547 wherein paragraph 29 (at page 556 of the report), the Supreme Court said that though the opinion which the High Court has to form under S. 100 is about the disqualification of the successful candidate on the date of his election yet, this opinion is to be formed at the time of pronouncing the judgment in the election petition. The submission which Sri Kumar founded upon this observation was that where it was found that there was no returned candidate on the date of pronouncement of the judgment in an election petition, no declaration about the invalidity of his election could be made by the High Court. In making this submission. The submission which Sri Kumar founded upon this observation was that where it was found that there was no returned candidate on the date of pronouncement of the judgment in an election petition, no declaration about the invalidity of his election could be made by the High Court. In making this submission. Sri A. Kumar overlooked that in the case before the Supreme Court, the position was that a person who was disqualified on account of his conviction on . a criminal charge on the date of election ceased to be so disqualified on account of his subsequent acquittal which had the effect of wiping out the disqualification retrospectively so that there was no disqualification attaching to the candidate on the date of election either. The observations relied upon by Sri Kumar cannot be read in isolation, divorced from the facts of the case in which they were made, 53. The reliance of Sri A. Kumar upon the observations contained in Sh. Rahim Khan v. Election Commission of India, New Delhi, AIR 1981 P&H 79 is also not-apposite. There the returned candidate had been found to have committed corrupt practice in the election. He was disqualified for a period of six years by an order of the High Court dated March 12, 1973. The appeal against this judgment was dismissed by the Supreme Court on Aug 8, 1974. On Aug 31, 1979 a list of persons disqualified under Sections 8A and 11A(2) was prepared and the name of the petitioner Rahim Khan was shown therein. The period of disqualification was shown as six years from Aug 8, 1974. An application was made by Rahim Khan before, the President of India/Election Commission praying for the removal his disqualification and in the alternative pointing out that his period of disqualification should be taken as ending on March 12, 1979 i.e. on expiry of six years with effect from March 12, 1973 when the High Court had found him guilty of having committed the corrupt practice. The representation was rejected. The representation was rejected. The writ petition was dismissed by the High Court with the observation that on account of stay order passed by the Supreme Court during the pendency of the appeal before it, the period of six years disqualification of Rahim an would commence from Aug 8, 1974 on which date the Supreme Court had dismissed the appeal and not with effect from March 12, 1973 when the election was declared void by the High Court. 54. The observations in this judgment clearly establish that where the order of the High Court is stayed, its effect stands suspended. Obviously, therefore, in that situation it cannot be said that there is a declaration that the election of the returned candidate is void. These observations lend support to the view that where, as in the present case a declaration about the election of a returned candidate being void, is stayed either by the High Court or by the Supreme Court, in the eye of law it does not exist and the returned candidate continues to be such a candidate as far as the constituency is concerned. 55. There is another way of looking at the problem. S. 86(3) of the Act says that where more election petitions than one are presented in the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. Therefore, in respect of a particular election from a constituency, there may be several challenges to the election of the returned candidate. The grounds of challenge may differ. Each one of them will have to be adjudicated upon. If the submission of Sri Kumar were to be accepted, the result would be that the proceedings will have to be continued to a stage where the High Court is required to form an opinion about acceptance or otherwise of any of the grounds mentioned in S. 100 in each of the cases and, yet, at that stage the court shall have to refrain from making a declaration, if the election of the returned candidate has been declared to void in one of the petitions earlier. Such a situation could not have been contemplated by the Parliament. 56. Examined further, the untenability of the submission becomes crystal clear. Such a situation could not have been contemplated by the Parliament. 56. Examined further, the untenability of the submission becomes crystal clear. Suppose the appeal against the declaration of the election of a returned candidate as void by the High Court is allowed by the Supreme Court and the earliest decision, from amongst various election petitions, is set aside. Will, at this stage, proceedings in other election petitions be taken beyond the stage at which they were supposed to have been stopped due to the fact that the election of the returned candidate had been declared void. If so, what happens if the same Hon'ble Judge who heard these petitions is not available to record his decision on the other petitions. Will the matter be tried afresh. All these are questions for which Sri A. Kumar had no satisfactory answer. 57. In the present election petition, I have come to the conclusion that the election petitioner has not succeeded in making out a case for declaration of the election of the first respondent as void. The question canvassed by Sri A. Kumar is thus academic. I must, in fairness to him, mention that during the course of his submissions, Sri A. Kumar had taken the position that if in a subsequent election petition the Court were of opinion that the petition had no merit and was to dismiss it, the kind of objection raised by him will not be available to the returned candidate. 58. In ultimate analysis, this election petition fails and is dismissed with costs to the first respondent which I fix at Rs. 500/-.