The oath or affirmation required under Article 173(a) of the Constitution of India and the form prescribed in Schedule III is mandatory and must be made or subscribed after the person concerned is nominated as a candidate. If the oath is taken earlier to the presentation of nomination paper to the Returning Officer, the nomination paper is invalid and the person concerned is disqualified to take part in the election.

D. P. MOHAPATRA, J.

( 1 ) SHRI Sambhu Panigrahi, who filed his nomination to contest for election to the State Legislative Assembly from 72-Chatrapur constituency held in 1990, filed this application under Ss. 80a, 81, 84, 87, 98, 99, 100 read with Ss. 30, 33, 36 of the Representation of the People Act, 1951 (for short the 'act') and Art. 173 (a) of the Constitution of India, 1950 with the prayers, inter alia, to declare that rejection of his nomination paper by the Returning Officer, Chatrapur as illegal and improper and thereby the election of the respondent Shri Parsuram Panda from the said constituency was materially affected and to declare the election of the respondent as void and set aside the same.

( 2 ) THE case pleaded by the petitioner in his petition shortly stated is that the last date for filing nominations for election to the aforementioned constituency was fixed to 4-2-1990 and 5-2-1990 was the date for scrutiny of nominations. On 2-2-1990 the petitioner deposited Rs. 250/- towards security deposit for the election before the Nazir, Sub-Collector Office, Chatrapur and obtained the receipt, Annexure 1. On 2-2-90 at 12. 43 P. M. the petitioner for the purpose of filing his nomination as a candidate for the election made and subscribed the oath or affirmation as required under Art. 173 of the Constitution of India and obtained a certificate from the Asst. Returning Officer, Chatrapur Assembly Constituency to that effect (Annexures 2 and 3 ). On the same day, i. e. , 2-2-1990 at 1 P. M. the petitioner filed four nominations before the Assistant Returning Officer, who was duly authorised to receive nominations (Annexure 4 ). In the receipt issued by the Assistant Returning Officer it was endorsed that the scrutiny of the nominations will be at the Sub-Collector's office, Chatrapur on 5-2-90 at 11 a. m. Annexure 4 ). On 5-2-90 the Returning Officer, Chatrapur, Assembly Constituency took up scrutiny of the nomination papers and rejected the nomination of the petitioner on the sole ground that he has taken the oath before being nominated. On 7-2-1990 the Returning Officer declared the names of the validly nominated candidates including the respondent (Annexure 5 ). The ground of rejection, according to the petitioner, is erroneous, illegal and untenable and against the provisions of the constitution of India and the Act and the orders issued thereunder. It is the contention of the petitioner that Article 173 (a) of the Constitution of India requires that before standing for election a candidate should take the oath as prescribed by the III Schedule and therefore the petitioner committed no error or illegality in taking oath before filing his nomination paper. It is his further contention that the erroneous and untenable decision of the Returning Officer has materially affected the election of the respondent and therefore it should be declared void and set aside. The election petitioner also alleged that the Returning Officer rejected his nomination because of previous animity since the election petitioner as a Journalist had reported against his activities as Sub-Collector, Chatrapur and therefore the decision of the Returning Officer to reject his nomination was actuated by bias, grudge and malice.

( 3 ) THE respondent in his written statement while accepting and supporting the setps and the decision taken by the Assistant Returning Officer and the Returning Officer in connection with the election has denied the allegations made in the petition questioning his election to the State Legislative Assembly. According to the respondent the decision taken by the Returning Officer to reject the petitioner's nomination is legal and proper. It is the case of the respondent that the allegations made by the petitioner that the order passed by the Returning Officer was actuated by bias, malice and personal grudge against him is beyond the scope of enquiry in this case and should not be entertained at all. He has also questione