Case: Virji Ram Sutaria Vs. Nathalal Premji Bhanvadia And Ors

The notification of the Governor of Gujarat under Section 15 (2) of the Representation of the People Act of 1951 for the purpose of election to the Gujarat State Legislative Assembly was issued on January 13, 1967. Nomination papers were filed by several persons including the returned candidate and the scrutiny thereof was made on January 21, 1967. The poll took place on February 18, 1967 and the result declared on February 27, 1967 showing the returned candidate wining comfortably by a margin exceeding 3800 votes over his nearest rival. One of the grounds taken in the election petition was that immediately after the scrutiny of the nomination papers, the third respondent to the election petition has filed a written objection before the Returning Officer contending that the returned candidate had not taken oath properly and on the same ground he along with respondents 2 and 4 were not qualified to be chosen and their nomination papers should be rejected. This contention was turned down by the Returning Officer and was also negatived by learned Judge who heared the election petition and in this appeal the unsuccessful petitioner has only pressed this ground.The returned candidate had filed three nomination papers with three different proposers on January 20, 1967. Each of the three nomination papers clearly mentioned that he was a candidate for election to fill a seat in the Vidhan Sabha for the Gujarat State i. .e Legislative Assembly of the State. The nomination paper of the returned candidate contained a form of oath or affirmation which was both in Gujarati as well as in English. The English form followed word for word Form No. VII as set out in the Third Schedule, to the Constitution and the Gujarati form purported to set out the Gujarati translation of the form of oath or affirmation. The relevant difference for the purpose of this appeal between the two forms lay in this that the words "Legislative Assembly" in the form in English were translated in Gujarati form as "Rajya Sabha" and the appellants contention before the High Court and before us rested solely on the use of this word which according to learned counsel went to show that the oath that was taken was for the purposes of filling a seat not in the legislative assembly of the state but in the Legislative Council of the State. At the hearing of the petition before the High Court the returned candidate gave evidence to the effect that he had taken the oath not according to the words in the Gujarati form but according to the translation of the words in the English form rendered by the Returning Officer. The Returning Officer was merely called to produce some documents but he was not put on oath nor was he asked any question to corroborate the testimony of the returned candidate. The High Court did not accept this testimony and we see no reason to come to any different conclusion.

Court's reasoning:
6. The High Court held that there was substantial compliance with the requirements of Article 173 (a) of the Constitution in the circumstances surrounding the making and the subscribing of the oath even if the compliance was not literal. we Are in full agreement with that view. The essential requirement of Article 173 (a) of the Constitution for our present purpose is that in order to be qualified to be chosen to fill a seat in the Legislature of a State a person (i) must be a citizen of India and (ii) must make and subscribe before a person duly authorised an oath or affirmation according to the form set out for the purpose in the Thirdwas contended that the provisions of the above clause were mandatory and only this Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by the Court that the Speaker was not present when the Bills were passed and under Article 180 (2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and empahasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the legislature or the constitution-makers intended that there should be no departure from the strict words used.12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the persons and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid.