Judgment

SIKRI, J. :- This is an appeal under Section 116A of the Representation of the People Act, 1951-hereinafter referred to as the Act - from the judgment of the High Court of Judicature at Patna dismissing Election Petition No. 8 of 1967 filed by the appellant Pashupati Nath Singh hereinafter referred to as the petitioner. In order to appreciate the point arising before us it is necessary to state the relevant facts.

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 schedule :

"(a) Date 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, 1967.

(f) Date of declaration of result of the election - 23rd February, 1967".

The 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.

4. The short question which arises in this appeal is whether it is necessary for a candidate to make and subscribe the requisite oath or affirmation as enjoined by Clause (a) of Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper. In other words, is a candidate entitled to make and subscribe the requisite oath when objection is taken before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination commenced? The answer to this question mainly depends on the interpretation of Section 36 (2) of the Act. It will, however, be necessary, to refer to some other sections of the Act in order to fully appreciate the effect of the words used in that section. Section 32 of the Act provides for nomination of candidates for election thus.

"Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act or under the provisions of the Government of Union Territories Act, 1963, as the case may be."

5. It was suggested by the learned counsel for the respondent, Mr. Gupte, that this section means that a candidate must also be qualified to be chosen on the last date for filling nominations. We need not consider this question because we have come to the conclusion that the pensioner was not qualified for being chosen to fill the seat on the date fixed for scrutiny of nominations within the meaning of Section 36 (2) (a).

6. Section 33 provides for presentation of nomination paper and certain requirements for a