Case: Pashupati Nath Singh Vs. Harihar Prasad Singh

2. The petitioner stood as a candidate for election to the Bihar Legislative Assembly. The election to that Assembly from the Dumrao Assembly Constituency was held during the last general election as per the following scheduleDate of filing nomination papers - 13th January, 1967 to 20th January,1967.(b) Date of scrutiny of nomination papers -21st January, 1967.(c) Last date of withdrawal of candidatures -23rd January, 1967.(d) Date of poll 17th February, 1967.(e) Date of counting of votes - 23rd February,Date of declaration of result of the election - 23rd February,petitioner filed his nomination paper before the Returning Officer at Buxar on January 16, 1967. Eight other candidates, including the respondent Harihar Prasad Singh, filed their nomination papers before the Returning Officer on different dates between January 13, l967, and January 20, 1967. On January 21, 1967, the nomination papers were taken up for scrutiny, when the Returning Officer rejected the nomination paper of the petitioner and accepted the nomination papers of the remaining eight candidates. On February 17, 1967, the poll was held and the respondent, Shri Harihar Prasad Singh, secured the largest number of votes, namely, 14,539, and was accordingly declared, elected. Thereupon the petitioner presented election petition in the Patna High Court for a declaration that the election of the respondent is void on the ground that the nomination paper of the petitioner was improperly rejected by the Returning Officer.3. The High Court held that the nomination of the petitioner was rightly rejected by the Returning Officer on the ground that he was not qualified to be chosen to fill a seat in the State Legislature since he had not made and subscribed the requisite oath or affirmation as enjoined by Clause (a) of Article 173 of the Constitution, either before the scrutiny of nominations or even subsequently on the date of scrutiny.

Reasoning:
17. Reference was also made to Form 2-B in the Conduct of Election Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapilded Narain Singh, Election Appeal No. 4 of 1965, D/- 22-9-1965 (Pat). That decision proceeded on the basis that"one can be said to be so nominated only when, after scrutiny of the nomination papers, the Returning Officer finds him to be validly nominated, as provided under Section 36 (8) of the Representation of the People Art, 1951."With respect, the High Court proceeded on a wrong basis. The form of oath does not say having been validly nominated" but only "having been nominated."