AAD LAL Vs. KANSHI RAM

JUDGEMENT

(1.) Aad Lal, who contested the election to the Punjab Legislative Assembly from the Fazilka constituency in June, 1977, filed a petition to challenge the election of Kanshi Ram, hereinafter referred to as the respondent. He has filed the present appeal against the judgment of the High Court of Punjab and Haryana dated February 20, 1978, as his petition has been dismissed with costs. While the appellant was a candidate of the Janata Party and secured 19,929 votes, the respondent was a candidate of the Congress Party and secured 23,409 votes. There were other contestants at the election, but they fared badly and it is not necessary to refer to them. The appellant challenged the election of the respondent on the ground that he was not qualified to contest the election under S. 100 (1) (a) of the Representation of the People Act, 1951, hereinafter referred to as the Act, as he did not make and subscribe the oath prescribed by clause (a) of Art. 173 of the Constitution. He also pleaded that the respondent committed corrupt practices under sub-sections (5), (2) and (4) of S. 123 of the Act. We shall refer to the allegations when we deal with the issues which were framed by the trial Court. It will be sufficient to say here that the respondent traversed all the allegations against him.

(2.) Issue No.1 raised the question whether the respondent made and subscribed a valid oath at the time of filing his nomination papers. The precise allegation was that he did not make and subscribe the oath "according to the form set out in Schedule third of Constitution as required under clause (a) of Article 173 of the Constitution of India." It was further alleged that although he was "required to make an oath either in the name of God or on solemn affirmation and not in both ways", he did not do so and was therefore not qualified to contest the election.

(3.) It is not in controversy that the oath of the respondent is recorded in Ex. P. W. 1/1 and that, so far as its contents are concerned, it is according to the form set out for the purpose in the Third Schedule to the Constitution. The allegation in the election petition that the form of the oath was defective, is therefore quite untenable and has not been raised before us. It is true that Ex. P. W. 1/1 shows that the words "swear in the name of God" and "solemnly affirm", were both allowed to stand, and the one or the other alternative was not struck off. It is however quite clear from the endorsement on Ex. P. W. 1/1 of the authorised officer, who was himself the Returning Officer, that the respondent made and subscribed the oath in his presence and "in the name of God", at 1.27 p.m. on May 18, 1977. This has been proved by the statement of Returning officer Darshan Singh Multani P. W. 2. The Election Commission of India had emphasised the importance of making and subscribing the oath, and in its "Handbook for Returning Officers" it had stated in paragraph 8 of Chapter II that the authorised person should forthwith give a certificate to the candidate that he had made and subscribed the oath before him. It emphasised that the certificate should be granted without his applying for it so that all future controversy in the matter may be avoided. That certificate is on the record as Ex. P. W. 1/1A, and the Returning Officer has proved that it was given by him to the respondent. He has further stated that he had scored off the Gurmukhi equivalent of the words "solemn affirmation" from the certificate (Ex.P. W. 1/1A) immediately after the oath was administered to the respondent but that portion was not scored off from the oath form Ex. P. W. 1/1 because of rush of work. The statement of the Returning Officer and certificate Ex. P. W. 1/1A clearly disprove the contention of the appellant to the contrary, and the trial Court was quite justified in placing reliance on them.