Judgement

BACHAWAT, J.: This appeal is directed against a judgment of a Single Judge of the High Court of Jammu and Kashmir dismissing an election petition for setting aside the election of the respondent Jagat Ram Aryan to the legislative assembly of the State of Jammu Kashmir from the Bhaderwah scheduled caste assembly comstituency.

2. The last date for filing the nomination papers was January 20, 1967. The date of scrutiny of nomination papers was January 23, 1967. The date of poll was February 21, 1967. The date of counting and declaration of result was March 1, 1967. Several candidates filed their nomination papers from this constituency. The candidates were: (1) Jagat Ram Aryan, (2) Faquir Chand, (3) Narain Dass, (4) Nikka Ram, (5) Bhagat Ram, (6) Om Prakash and (7) Swami Raj. The first five filed their nomination papers on January 23, 1967 before the Assistant Returning Officer, Kahan Singh, a Tehsildar of Bhaderwah. On scrutiny of the nomination papers, the Returning Officer Abdul Gani accepted as valid the nomination papers of Jagat Ram and Faquir Chand and rejected the nomination papers of the remaining candidates for various reasons. At the poll the contest was between Jagat Ram, the Congress candidate and Faquir Chand, the National Conference candidate. Respondent Jagat Ram having secured larger number of votes was declared elected.

3. The appellant, a voter in the constituency, filed the election petition for setting aside the respondents election on the ground that the nomination papers of Narain Dass, Nikka Ram and Bhagat Ram were improperly rejected. The High Court found that the nomination payer of Bhagat Ram was properly rejected and this finding is no longer challenged.

4. The nomination paper of Nikka Ram was rejected on three grounds: (1) he did not make and subscribe the oath or affirmation as required by Section 51 (a) of the Jammu and Kashmir Constitution; (2) he was not a member of a scheduled caste and (3) his father s name was not correctly shown in the electoral rolls. The nomination paper of Narain Dass was rejected on two grounds: (1) he did not make and subscribe the oath or affirmation as required by Section 51(a) and (2) he was not a member of a scheduled caste. The High Court found that both Narain Dass and Nikka Ram were members of the scheduled caste "Megh". It also held that the error in the electoral roll with regard to the name of Nikka Ram s father was not a ground for rejecting his nomination paper having regard to Section 44 (4) of the J. & K. Representation of the People Act, 1957. The High Court also rejected the additional contention that Narain Dass had not made a deposit of Rs. 125/- in conformity with Section 45 (2) of the Act. All these findings are no longer challenged.

5. The only point now in issue is whether Narain Dass and Nikka Ram made and subscribed the oath or affirmation as required by Section 51 (a) of the J. & K. Constitution. Section 51 (a) provides:

"A person shall not be qualified to be chosen to fill a seat in the legislature unless he-

(a) is a permanent resident of the State, and makes and subscribes before some person authorised in that behalf by the Election Commission of India an oath or affirmation according to the form set out for the purpose in the fifth Schedule."

6. The Returning Officer and the Assistant Returning Officer were authorised in this behalf by the Election Commission of India by notification No. 3/4 J. & K./65 as the persons before whom the oath or affirmation could be made and subscribed. The prescribed form of oath or affirmation to be made by a candidate of the State legislature is:-

"I, A. B., having been nominated as a candidate to fill a seat in the Legislative Assembly, (or Legislative Council) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity of India."

7. Section 44 of the J. & K. Representation