SAMBHU PANIGRAHI v. PARSURAM PANDA — 1991 DIGILAW 383 (ORI)

D. P. MOHAPATRA, J. ( 1 ) SHRI Sambhu Panigrahi, who filed his nomination to contest for election to the State Legislative Assembly from 72-Chatrapur constituency held in 1990, filed this application under Ss. 80a, 81, 84, 87, 98, 99, 100 read with Ss. 30, 33, 36 of the Representation of the People Act, 1951 (for short the 'act') and Art. 173 (a) of the Constitution of India, 1950 with the prayers, inter alia, to declare that rejection of his nomination paper by the Returning Officer, Chatrapur as illegal and improper and thereby the election of the respondent Shri Parsuram Panda from the said constituency was materially affected and to declare the election of the respondent as void and set aside the same. ( 2 ) THE case pleaded by the petitioner in his petition shortly stated is that the last date for filing nominations for election to the aforementioned constituency was fixed to 4-2-1990 and 5-2-1990 was the date for scrutiny of nominations. On 2-2-1990 the petitioner deposited Rs. 250/- towards security deposit for the election before the Nazir, Sub-Collector Office, Chatrapur and obtained the receipt, Annexure 1. On 2-2-90 at 12. 43 P. M. the petitioner for the purpose of filing his nomination as a candidate for the election made and subscribed the oath or affirmation as required under Art. 173 of the Constitution of India and obtained a certificate from the Asst. Returning Officer, Chatrapur Assembly Constituency to that effect (Annexures 2 and 3 ). On the same day, i. e. , 2-2-1990 at 1 P. M. the petitioner filed four nominations before the Assistant Returning Officer, who was duly authorised to receive nominations (Annexure 4 ). In the receipt issued by the Assistant Returning Officer it was endorsed that the scrutiny of the nominations will be at the Sub-Collector's office, Chatrapur on 5-2-90 at 11 a. m. Annexure 4 ). On 5-2-90 the Returning Officer, Chatrapur, Assembly Constituency took up scrutiny of the nomination papers and rejected the nomination of the petitioner on the sole ground that he has taken the oath before being nominated. On 7-2-1990 the Returning Officer declared the names of the validly nominated candidates including the respondent (Annexure 5 ). The ground of rejection, according to the petitioner, is erroneous, illegal and untenable and against the provisions of the constitution of India and the Act and the orders issued thereunder. On 7-2-1990 the Returning Officer declared the names of the validly nominated candidates including the respondent (Annexure 5 ). The ground of rejection, according to the petitioner, is erroneous, illegal and untenable and against the provisions of the constitution of India and the Act and the orders issued thereunder. It is the contention of the petitioner that Article 173 (a) of the Constitution of India requires that before standing for election a candidate should take the oath as prescribed by the III Schedule and therefore the petitioner committed no error or illegality in taking oath before filing his nomination paper. It is his further contention that the erroneous and untenable decision of the Returning Officer has materially affected the election of the respondent and therefore it should be declared void and set aside. The election petitioner also alleged that the Returning Officer rejected his nomination because of previous animity since the election petitioner as a Journalist had reported against his activities as Sub-Collector, Chatrapur and therefore the decision of the Returning Officer to reject his nomination was actuated by bias, grudge and malice. ( 3 ) THE respondent in his written statement while accepting and supporting the setps and the decision taken by the Assistant Returning Officer and the Returning Officer in connection with the election has denied the allegations made in the petition questioning his election to the State Legislative Assembly. According to the respondent the decision taken by the Returning Officer to reject the petitioner's nomination is legal and proper. It is the case of the respondent that the allegations made by the petitioner that the order passed by the Returning Officer was actuated by bias, malice and personal grudge against him is beyond the scope of enquiry in this case and should not be entertained at all. He has also questioned the maintainability of the application on the ground that the petitioner having not paid the requisite authentication fee on the order of the Returning Officer rejecting his nomination when he filed the election petition and having removed the defect only after it was pointed out by the Registry; the election petition was not complete in all respects and hence is not maintainable. ( 4 ) CONSIDERING the pleadings of the parties the following issues were framed; (1) Is the election petition maintainable ? (2) Is the election petition barred by limitation ? ( 4 ) CONSIDERING the pleadings of the parties the following issues were framed; (1) Is the election petition maintainable ? (2) Is the election petition barred by limitation ? (3) Was the nomination paper of the petitioner improperly rejected ? (4) Was the rejection of the petitioner's nomination vitiated due to mala fide or bias on the part of the Returning Officer ? (5) To what relief, if any, is the petitioner entitled to in the case ? ( 5 ) IT is manifest from the order dated 12-12-90 that at the commencement of hearing of the case; Shri B. B. Ratho, learned counsel appearing for the election petitioner stated that the election petitioner does not intend to press the allegations that being actuated by grudge and bias the Returning Officer rejected his nomination paper and therefore no evidence will be led on the said averments. Shri P. Palit, learned counsel for the respondent submitted that the challenge to the maintainability of the election petition on the ground of improper presentation and limitation will not be pressed by him and no evidence will be led on these points. In view of the submissions of the learned counsel for the parties the only material issue to be considered is issue No. 3. ( 6 ) ISSUE No. 3. The question for consideration Under this issue is whether in the facts and circumstances of the case the Returning Officer was right in rejecting the nomination of the petitioner on the ground that he had subscribed the oath before being nominated as a candidate for the election. On a bare reading of the election petition, the gist of which has been discussed earlier, it is manifest that the petitioner admitted that he subscribed the oath at 12. 43 P. M. on 2-2-90 while he presented his nomination paper at 1 P. M. on that date, thus admitting the factual position that he had taken oath before filing his nomination paper, but at the stage of evidence the election petitioner, as it appears from the evidence led by him, tried to take a different stand. At the cost of repetition the pleadings in paragraphs three, four and five of the election petition are quoted hereunder :"3. That on 2-2-1990 the petitioner deposited Rs. 250/- towards security deposit for the State Assembly Election, 1990 before Nazir, Sub-Collector Office, Chatrapur. At the cost of repetition the pleadings in paragraphs three, four and five of the election petition are quoted hereunder :"3. That on 2-2-1990 the petitioner deposited Rs. 250/- towards security deposit for the State Assembly Election, 1990 before Nazir, Sub-Collector Office, Chatrapur. Copy of the receipt of the said deposit is Annexure-1 to this petition. 4. That on 2-2-1990, at 12. 43 P. M. the petitioner for purpose of his filing the nominations as a candidate for the election to the 72-Chatrapur Assembly Constituency made and subscribed the oath or affirmation as required under the Constitution of India, before the Assistant Returning Officer, Chatrapur, Assembly Constituency, A copy of the form of oath and a copy of certificate dated 2-2-1990 showing the petitioner made and subscribed oath or affirmation is Annexures 2 and 3 to this petition. 5. That accordingly the petitioner on 2-2-1990 at 1 P. M. filed four nominations before the Assistant Returning Officer, Chatrapur Assembly Constituency, who was duly authorised to receive nominations. In the receipt of the said nomination papers the Assistant Returning Officer of the Chatrapur Assembly Constituency indicated the date and place of scrutiny of nominations at the Sub-Collector's office, Chatrapur on 5-2-1990 at 11 A. M. Copy of the receipt showing filing of nomination paper is Annexure 4 to this petition. " ( 7 ) IN his deposition P. W. 1, the election petitioner stated that he presented all the nomination papers before the Asst. Returning Officer in the Office of the Sub-Collector, Chatrapur on 2-2-90. We reached Chatrapur at about 11. 30 a. m. and after the proposers reached the place he personally filled up the nomination papers and presented them before the Asst. Returning Officer. On the advice of the latter he deposited Rs. 250/- towards security money in the office of the Sub-Collector-cum-Returning Officer. He presented the nominations before the Asst. Returning Officer at about 12. 30 P. M. After getting receipt of security deposit he showed it to the officer who thereafter issued two oath forms, one in English and another in Oriya, which he filled up, made the requisite affirmation and signed them in presence of the Asst. Returning Officer. He proved the nomination papers as per Exts. 1, 1/1 and 2/1 and the oath form Ext. 4. He further stated that by the time he presented the form of oath to the Asst. Returning Officer. He proved the nomination papers as per Exts. 1, 1/1 and 2/1 and the oath form Ext. 4. He further stated that by the time he presented the form of oath to the Asst. Returning Officer it was about 12. 45 p. m. , on receiving the same, the Officer attached it to the nomination papers filed by him. After waiting in the office for some time he received four receipts acknowledging receipt of the nomination papers and the certificate relating to the form of oath or affirmation. After scrutiny the Returning Officer rejected his nomination papers on the ground that he had taken oath before filing the nomination papers. In cross-examination he stated that sometimes after he filed the nomination papers the Asst. Returning Officer issued receipts to him and he has filed one such receipt (Ext. A) with the election petition, on being confronted with the averments made in paragraphs, 3, 4 and 5 of the election petition he accepted the statements and also accepted the fact that in the verification it is stated that in paragraphs 1, 2, 3, 5, 6, 7, 10 and 13 are true to the best of his knowledge and that similar statement is also contained in the affidavit annexed to the election petition. He also accepted the fact that the statements made by him in the examination-in-chief relating to sequence of events that took place after he presented the nomination papers to the Asst. Returning Officer were not stated in the election petition; that after receiving the receipts (Exts. 4/1 and A) he did not file any objection before the Asst. Returning Officer; that he did not file any objection after the Returning Officer rejected his nomination papers. P. W. 2 Venkata Behari Praharaj was one of the proposers of the election petitioner. He has deposed that the nomination paper of the election petitioner was presented between 12 noon and 12. 30 p. m. then the officer asked him to deposit the security money which the election petitioner complied, then the election petitioner made over the receipt to the Asst. Returning Officer who gave a piece of paper to him and asked him to take oath which the election petitioner complied and after waiting outside the room for about an hour the election petitioner informed him that he has got the receipt and they all left the place. Returning Officer who gave a piece of paper to him and asked him to take oath which the election petitioner complied and after waiting outside the room for about an hour the election petitioner informed him that he has got the receipt and they all left the place. In cross-examination he stated that he did not see the receipt of the security deposit which was made over to the election petitioner by the assistant who received the amount. He could not say if the time when the deposit was made was mentioned in the receipt or any other official record. On receiving the nomination papers the Asst. Returning Officer did not issue any receipt to the election petitioner. Though the witness had seen the receipt he had not carefully read it. He could not say if the time when the nomination papers were filed and when the oath was subscribed by the election petitioner had been mentioned in the receipt. He had seen the documents (Exts. 4/1 and A) with the election petitioner. We stated that from Ext. 4-1 it appears that the time at which the oath was made as stated in the document is 12. 43 p. m. and similarly in Ext. A the time at which the nomination was filed is stated to be 1 p. m. The witness categorically stated that the timings mentioned in Exts. 4/1 and A may be correct. P. W. 3 Rabindra Kumar Panda was another proposer of the election petitioner. It appears from his deposition that the nomination paper was filed at about 12. 30 p. m. After presentation of the nomination paper on being asked by the Asst. Returning Officer the election petitioner deposited the security money with the person in charge of cash and when the receipt was obtained it was produced before the Asst. Returning Officer who gave a printed form to the election petitioner and asked him to take oath which he did, thereafter the Asst. Returning Officer kept the oath form along with the nomination paper filed by the election petitioner. In cross-examination the witness stated that he had seen Ext. 4/1 and A with the election petitioner; Ext. 4/1 does not indicate that the election petitioner took oath on 2-2-90 and it is stated in Ext. Returning Officer kept the oath form along with the nomination paper filed by the election petitioner. In cross-examination the witness stated that he had seen Ext. 4/1 and A with the election petitioner; Ext. 4/1 does not indicate that the election petitioner took oath on 2-2-90 and it is stated in Ext. A that the nomination paper of the election petitioner was filed at 1 P. M. The witness could not say if the contents of the receipt (Ext. A) are correct or not. P. W. 4, Shri Lalit Mohan Bahinipati was the Asst. Returning Officer of the 72 Assembly Constituency, Chatrapar. He had can authorised by the notification of the Election Commission of India to receive nomination papers and administer oath to candidates. It is in his statement that on 2-2-90 he received nomination papers between 11 a. m. and 3 P. M. in the court hall of the Sub-Collector who was declared as the Returning Officer of the Constituency; the other Asst. Returning officer (Emergency Officer) and two or three peons were also sitting in the same room; the Nazir who was to receive the security deposits was not sitting in that room; he was sitting in another room in his usual seat. The witness further stated that the general procedure followed by him on 2-2-90 was that on the nomination paper being presented by the candidate himself or his proposer he received it and signed it endorsing the time of its receipt thereafter a sealed receipt was handed over to the person presenting the nomination paper; the nomination papers were entered in the register and at the end of the day they were forwarded to the competent authority. The witness stated that he had put his signature and endorsement regarding the time at the top left side corner of the nomination paper. The entries in the register were made by the other Asst. Returning Officer (Emergency Officer ). It is also in his statement that before administering oath he did not insist on any document to establish the identity of the person offering to take oath. The witness stated that Ext. 4 was the oath form signed by the election petitioner and in the said document it is mentioned that having been nominated as a candidate the election petitioner took oath before him. The witness stated that Ext. 4 was the oath form signed by the election petitioner and in the said document it is mentioned that having been nominated as a candidate the election petitioner took oath before him. The witness further stated that he did not verify if by the time the election petitioner took oath he was nominated as a candidate; he had not filed the nomination paper or the receipt showing deposit of security amount before him when he took oath. The witness saw the security deposit receipt (Ext. 3) when the election petitioner filed his nomination papers. He also stated that a candidate is required to take oath after filing his nomination paper and before scrutiny of the same. While administering oath to the election petitioner the witness did not tell him when he was required to take oath. He had not informed any of the candidates about this since he thought that there was no necessity for it as the candidates were aware of the correct position. When he administered oath to the election petitioner he did not search for his nomination paper. In cross-examination the witness stated that in the oath form (Ext. 4) he had endorsed the time "12. 43 P. M. " and the form was signed by him. The said endorsement was made in presence of the election petitioner. Ext. 4/1 was the counter foil which he made over to the election petitioner. Immediately after the election petitioner took oath and the witness signed the form, he kept the oath form with him and made over the counter foil to the election petitioner. He further stated that on each page of the nomination papers (Exts. 1, 1/2, 2, 2/2) he had endorsed the time of its filing as "1 P. M. " Ext. A was the receipt which he issued to the election petitioner in token of receipt of his nomination papers wherein he endorsed the time of receipt as "1 P. M. " The receipt was issued immediately after he received the nomination papers from the election petitioner. 7-A. Coming to the witnesses examined on behalf of the respondent, the deposition of R. W. 1 the respondent is not very material. P. W. 2, Shri Wabakishore Patsani was the Returning Officer. 7-A. Coming to the witnesses examined on behalf of the respondent, the deposition of R. W. 1 the respondent is not very material. P. W. 2, Shri Wabakishore Patsani was the Returning Officer. From his deposition it appears that he had delegated the function of receiving the nomination papers and administering oath of affirmation of the candidates to the Asst. Returning Officer (P. W. 4 ). He conducted the scrutiny of the nomination papers on 5-2-90. After scrutiny he rejected the nomination paper of the election petitioner as per his orders Exts. 5, 5/1 and 6/1 on the sole ground that the candidate had taken oath before being nominated. Before passing his orders he had scrutinised the nomination papers and the oath form with reference to the time when the nomination papers were filed and oath was taken. He was not present when the nomination papers were filed. He was also not present when oath was administered to the election petitioner. He saw the documents at the time of scrutiny of the nomination papers. The witness could not say if he had held any preliminary scrutiny of the nomination papers. According to the witness the notice in the prescribed form at page 21 of the Hand Book for Returning Officers issued by the Election Commission of India is meant to be issued to a candidate who has not at all taken oath and not to a candidate who took oath before filing the nomination paper. The witness denied the suggestions that the Asst. Returning Officer who received the nomination papers did not comply with the instructions contained in the Hand Book, or that he himself did not comply with the instructions in the said Hand Book regarding receiving nomination papers and their scrutiny. ( 8 ) FROM the testimony of the witness discussed it the foregoing paragraphs it is clear to me that the election petitioner had specifically admitted in his pleadings that he had taken the oath before filing his nomination papers with the Asst. Returning Officer. This stand was also in accord with the relevant documents available on record. At the stage of deposition in Court he has taken a different stand that he took the oath after presenting his nomination papers before the Asst. Returning Officer. These statements were objected to on behalf of the respondent and in my view rightly being contrary to the pleadings. At the stage of deposition in Court he has taken a different stand that he took the oath after presenting his nomination papers before the Asst. Returning Officer. These statements were objected to on behalf of the respondent and in my view rightly being contrary to the pleadings. Considering the pleadings, the documents and the evidence on record, I have no doubt in my mind that the stand taken by the election petitioner at the stage of evidence is clearly an afterthought. It is also contrary to the facts available from the contemporaneous records. Therefore the statements made by the election petitioner and his witnesses, P. Ws. 1 to 3 that the oath was taken by the election petitioner after presenting the nomination papers before the Asst. Returning Officer is not believable and acceptable. It is well settled that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. See AIR 1987 SC 2179 ; Vinod Kumar Arora v. Smt. Surjit Kaur ). Indeed the Court should not permit evidence to be led on matters which are beyond the pleadings of the parties and even if such evidence finds place in record the Court is not entitled to look into it for any purpose whatsoever. As discussed earlier, the election petitioner has attempted to give a go by to his case in the pleadings that he had taken oath before presenting his nomination paper before the Asst. Returning Officer. I could have refused to record such evidence; lest it may be said that he was shut out from leading evidence I permitted him to adduce evidence subject to the objection regarding its admissibility for being contrary to the pleadings. ( 9 ) THE next question that arises for consideration is the consequence of a candidate taking the oath before presenting his nomination paper to the competent authority. The relevant provision in this connection is Art. 173 of the Constitution of India. It reads as follows : "173. ( 9 ) THE next question that arises for consideration is the consequence of a candidate taking the oath before presenting his nomination paper to the competent authority. The relevant provision in this connection is Art. 173 of the Constitution of India. It reads as follows : "173. Qualification for membership of the State legislature.- A person shall not be qualified to be chosen to fill, a seat in the Legislature of a State unless he- (a) 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 out for the purpose in the Third schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. " the aforesaid provision does not expressly indicate the stage at which the oath as required under (a) is to be subscribed. The form prescribed under Schedule III to the Constitution reads as follows : "form of oath or affirmation to be made by a candidate for election to Parliament I, A, B, having been nominated as a candidate to fill a seat in the Council of States. . . . . . . " from the prescribed form of oath it is clear that the oath is to be subscribed by the person after he is nominated as a candidate for the election. There is therefore no escape from the position that the constitutional mandate is that the oath is to be subscribed by the candidate after he files his nomination for the election in question. There is therefore no escape from the position that the constitutional mandate is that the oath is to be subscribed by the candidate after he files his nomination for the election in question. This view gets reinforced from the ruling of the Apex Court in the case of Pashupati Nath Singh v. Harihar Prasad Singh, reported in AIR 1968 SC 1064 wherein considering Article 173 (a) and the form of oath or affirmation to be made by a candidate for election to legislature of State in Schedule III, the court ruled that the words" having been nominated" in form clearly show that oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate and this is further clear from the fact that none of the sections, from Section 30 to Section 36 of the Representation of the People Act, 1951, required that this oath should accompany the nomination paper. The Apex Court in the case of Virji Ram Sutaria v. Nathalal Premji Bhanvadia, reported in AIR 1970 SC 765 held : "the vital requirements, therefore, are (a) the securing of a nomination, and (b) declaration of bearing true faith and allegiance to the Constitution and a promise to uphold the sovereignty and integrity of India. The securing of a nomination precedes the making of a declaration. The real purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. " this Court in the case of Sri Brundaban Majhi v. Sri Jagataswar Mirdha, reported in 1985 (II) OLR 486 : AIR 1986 Orissa 106 following the aforementioned decision of the Supreme Court, the decision of the Madhya Pradesh High Court in the case of Hariram Singh v. Kamtaprasad Sharma, reported in AIR 1966 MP 255 and the decision reported in AIR 1968 Mysore 18 (Khaja v. Siddavanaballi) held :"thus, the legal position is clear that the oath and affirmation is to be made or subscribed after filing of the nomination paper before the authorised officer. . . . . . . . . The oath taken earlier to the presentation of nomination paper to the Returning Officer under Section 33 of the Act is invalid and does not protect person from the disqualification under Article 173 (a) of the Constitution. . . . . . . . . The oath taken earlier to the presentation of nomination paper to the Returning Officer under Section 33 of the Act is invalid and does not protect person from the disqualification under Article 173 (a) of the Constitution. "in the case of Harjit Singh Mann v. S. Umrao Singh, reported in AIR 1980 SC 701 the Court on consideration of the provisions in Art. 173 (a) of the Constitution and S. 36 (2) of the Act ruled that the requirement for making and subscribing oath or affirmation was clearly mandatory. ( 10 ) THUS the legal position is clear that under Art. 173 (a) of the Constitution of India read with the form of oath and affirmation to be made by a candidate for election to the State Legislature prescribed in Schedule III, the requirement for making and subscribing oath or affirmation is mandatory and the oath or affirmation is to be made or subscribed after the person concerned is nominated as a candidate and if the oath is taken earlier to the presentation of nomination paper to the Returning Officer, the nomination paper is invalid and the person concerned is disqualified to take part in the election. Therefore, in the present case the Returning Officer rightly rejected the nomination paper of the election petitioner on the ground stated in his order. The issue is answered accordingly. ( 11 ) ISSUE No. 5. In view of the findings under issue No. 3 it has to be held that the election petitioner is not entitled to any relief in the case. This issue is answered accordingly. ORDER in the result, the election petition fails and it is dismissed. The election petitioner shall pay a consolidated sum of Rs. 2500/- towards cost to the respondent. Petition dismissed.