CHANDRA REDDY, J.

( 1 ) THE interpretation of Section 7 (d) of the Representation of the People Act (hereinafter referred to as the Act) is involved in this appeal directed against the judgment of the Election Tribunal, Eluru.

( 2 ) THE facts that are necessary for this enquiry are few and are not in dispute. The appellant and the respondent along with two others contested the general elections held in 1962 from Kakinada constituency of Andhra Pradesh. At the time of scrutiny of the nominations, an objection was raised by one of the contestants that the appellant was disqualified under Section 7 (d) of the Act by reason of his holding a mining licence and also a prospecting licence from the Govenment of Andbra Pradesh. This objection did not find favour with the Returning Officer with the result that the nomination paper was accepted.

( 3 ) THE poll took place in February and ultimately the appellant was elected to the Legislative Assembly of Andhra Pradesh. Shortly thereafter, one of the defeated candidates, C. V. K. Rao, the respondent herein filed an election petition before the Election Commission, New Delhi, on 7th April calling in question the election of the appellant on the ground that he was subject to the disqualifications mentioned in Section 7 (d) of the Act by virtue of his holding a mining lease for period of 25 years commencing from 13-4-1960 from the Government of Andhra Pradesh and a prospecting licence for manganese ore in Guttigonda Forest. That petition also contained allegations of corrupt practices falling within the terms of Section 123 of the Act. It was accompanied by an affidavit in support of the allegations of corrupt practices as required by the relevant statutory provisions. The petition was forwarded to the Election Tribunal, Eluru in due course of time.

( 4 ) BEFORE the trial was taken up it was discovered that the affidavit did not conform to Rule 94-A, which was promulgated under a notification dated 2 7/02/1962, issued by the Ministry of law, India, and which required the affidavit to be Sworn before Magistrate of the 1st Class or a Notary or Commissioner of Oaths. A request was then made to the Election Tribunal in the shape of I. A. No. 2 of 1962 filed on 25-8-1962 to accept an affidavit in the prescribed form and to condone the delay in that behalf. In spite of the opposition of the appellant, the application was allowed and the trial of the petition proceeded with.

( 5 ) WHILE holding that the allegations of corrupt practice have not been substantiated and it was not proved that the appellant was granted a prospecting licence, the Tribunal decided the issues bearing on Section 7 (d) against the appellant, in his opinion, the relevant clauses in the mining lease had the effect of imposing on the appellant a disqualification under that section. In the result, he declared the election of the appellant invalid and directed fresh election.

( 6 ) IT is this view of the Election Tribunal that is challenged before us. It has to be mentioned at this stage that the findings of the Tribunal on the other questions are not impugned before us. We have therefore only to consider whether the appellant has incurred disqualification envisaged by Section 7 (d) of the Act by reason of his obtaining a mining lease from the Government of Andhra Pradesh.

( 7 ) BEFORE we go into this controversy, we have to dispose of a preliminary objection raised by Mr. Krishna Menon, the learned counsel for the appellant, as to the competency of the Tribunal to condone the delay in filing an affidavit in the proper form. The above narration of facts shows that the affidavit as originally filed was not in terms j of the requirement of Rule 94-A which was added to the relevant rules under the afore-mentioned notification, in that it was not sworn before a 1st Class Magistrate but before an Advocate. It is for this reason that a second affidavit in proper form with an application to excuse the delay in that behalf was presented.