SUBHAN KHAN Vs. J H PATEL

JUDGEMENT

(1.) This Election Petition is filed for a declaration that the election of the Respondent Sri J.H. Patel, as void under Section 100(1)(c) of the Representation of the People Act, 1951 in respect of 158 Channagiri Legislative Assembly Constituency of 10th Karnataka Legislative Assembly General Election and to order repoll to that constituency.

(2.) The allegations in the petition are to the effect that the election to the 158 - Channagiri Legislative Assembly Constituency, Shimoga District, to fill the seat for the 10th Karnataka Legislative Assembly General Elections was held on 26-11-1994. The Returning Officer had published the calendar of events by issuing a public notice dated 24-10-1994 relating to Shimoga District. Similarly, the Returning Officer in Davanagere Legislative Assembly Constituency issued Calendar of Events for holding election to the said constituency. The petitioner had filed his nomination paper personally to contest the election in Davanagere Legislative Constituency and had taken oath as required under Art.173 of the Constitution of India.

(3.) One Sri E. Shekharappa, a voter of 158 - Channagiri Constituency filed a nomi- nation paper proposing the petitioner as candidate for election to fill the seat, on 29-10-1994. The Returning Officer issued a notice dated 29-10-1994 though the proposer to the petitioner to make and subscribe an oath or affirmation of the petitioner before the date appointed for scrutiny of nomination paper. It is alleged in the petition that at the time of filing of the nomination paper, the petitioner was at Bombay and he could not take oath as required under Art.173 of the Constitution of India before the competent authority as the petitioner was not aware of the said nomination. He came to Channagiri on 31-10-1994 at about 8 P.M. and that, on coming to know about the fact, he immediately made efforts to contact the second respondent to take necessary oath, but the competent authorities were not available at Channagiri. The Office of the competent authorities empowered to administer oath were closed on 1st and 2nd Nov. 1994 on account of Rajyothsava and Naraka Chathurdhashi being public general holidays. The petitioner, further alleges that he went to the Office of the Returning Officer which is located in the Office of the Tahsildar, Channagiri, on 3-11-1994 at 9 a.m. the day fixed for scrutiny nomination papers to take necessary oath. The petitioner took oath under Art.173 of the Constitution of India at 10.55 a.m. on 3-11-1994 before the Tahsildar Channagiri Taluk, before the commencement of scrutiny of nomination papers. The scrutiny of nomination papers were commended at 11 a.m. on 3-11-1994 and the petitioner produced the Certificate for having taken an oath under Art.173 of the Constitution of India at 10.55 A.M. on the same day before the Returning Officer. It is further alleged by the petitioner that, at the time of the scrutiny of the nomination paper, the petitioner also informed the second respondent that he had filed one nomination to Davanagiri Constituency and had taken oath before the Returning Officer of that Constituency. The second respondent without considering those facts, passed an order dated 3-11-1994 improperly rejecting the nomination of the petitioner on the ground that the petitioner had not made and subscribed an oath or affirmation as required by Art. 173(a) of the Constitution of India within the time. The Returning Officer, in the said order refused to mention the fact that the petitioner had alread taken an oath or affirmation under Art.173 of the Constitution relating to his nomination in Davanagere Constituency on the ground that it would not help him to accept his nomination in Channagiri Constituency. As a result of this improper rejection of the nomination paper of the petitioner, who got 'B ' Form from the 'Samajavadhi Party ' which is a national party and which was having a bright chances of success in the election, was excluded from contesting the election and only 11 persons including the Respondent were left in the fray. The elections were held on 26-11-1994 and the respondent was declared elected on 9-12-1994 who was nominated by Janata Dal party. The petitioner is challenging the election of the respondent on the ground that the petitioner 's nomination was improperly rejected on the ground that the Returning Officer failed to consider that the petitioner took oath on 3-11-1994 well before the commencement of the scrutiny of nomination paper and submitted the Certificate for having made oath at 10.55 a.m. before the commencement of the scrutiny of the nomination paper. It is his case that, he had taken the oath before the commencement of scrutiny and that he was qualified under the relevant provisions of the Act and the Constitution. It is alleged in the petition that the Returning Officer failed to consider that, either the Representation of People Act, 1951 or any other Act or Rules, do not prescribe the time within which the oath should be taken by the candidate nominated to contest the election and accordingly, the oath made by the petitioner before the scrutiny of nomination paper was proper. It is further alleged that the Returning Officer contrary to Section 36 of the Representation of People Act had improperly rejected the nomination of the petitioner and thereby it materially affected the results of the election. It is further alleged that the Returning Officer ought to have seen that the petitioner had already taken oath or affirmation under Art.173 of the Constitution before the Returning Officer of Davanagere Constituency before 3-11-1994, the date of scrutiny at Channagiri Constituency. On these grounds, the petitioner has prayed for declaring the election of the respondent as void and for an order of repoll.