The oath required under Art. 173 (a) of the Constitution must be taken after filing the nomination papers and before the date fixed for scrutiny to avoid disqualification.

S. C. MOHAPATRA, J.

( 1 ) KUCHINDA Assembly Constituency is a single-member reserved Constituency for the Orissa State Legislative Assembly (in short 'the Assembly' ). During the general elections to the Assembly held in the month of Mar. 1985, the petitioner filed four nomination papers for being elected from this Constituency. The respondent and two others also filed their respective nomination papers. At the time of scrutiny on 9-3-1985, the Returning Officer rejected the nomination papers of the petitioner on the ground that the petitioner was not qualified under Art. 173 (a) of the Constitution to be chosen to fill up a seat in the State Legislature since he did not take oath after filing of the nomination papers. The nomination papers of the two other candidates having been rejected on scrutiny, the respondent was declared elected uncontested. Petitioner has filed this petition to declare the election of the respondent void under S. 100 (1) (c) of the Representation of the People Act, 1951 (in short 'the Act')on the ground of improper rejection of his nomination papers.

( 2 ) THE simple case of the petitioner is that he made the oath before the Assistant Returning Officer at the time of filing of the nomination papers. The respondent resisted the petition both on facts and law.

( 3 ) ON the pleadings, the following issues were framed :-1) Whether under law oath/affirmation is to be made before filing of the nomination papers? 2) Whether the oath/affirmation was taken prior to the filing of the nomination papers? 3) Whether the Election Petition is maintainable for non-joinder of necessary. parties?findings issue No. 1 :-

( 4 ) THE Returning Officer may reject the nomination paper of a candidate at the time of scrutiny in case on the date fixed for scrutiny, the candidate is not qualified for being chosen to fill the seat under Art. 173 of the Constitution. Art. 173 (a) provides amongst other that a person shall not be qualified unless he takes oath according to the form set out in the Third Schedule. It reads as follows :-"173.- Qualification of membership of the State Legislature.- a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he - (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b)and (c ). . . . In the Form a person taking oath or subscribing affirmation is to make a declaration that he is taking the oath 'having been nominated as a candidate". Therefore, the answer to this Issue would depend upon the meaning of the words "having been nominated". Form VII-A in the Third Schedule of the Constitution reads as follows :- "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 that I will solemnly affirm true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India. "therefore, on the date of scrutiny to avoid the disqualification under Art. 173 (a), the person nominated to be a candidate ought to have taken the oath in Form VII-A in the Third Schedule of the Constitution.

( 5 ) THE requirement to take oath was provided in the Constitution by the Constitution (Sixteenth Amendment) Act, 1963. Immediately thereafter the Returning Officer and the Assistant Returning Officer were authorised by the Election Commission before whom the oath can be taken. Election Commission issued Notification No. 3/6/68 (1) dated 18-3-1968 superseding the earlier Notification by which apart from the Returning Officer and the Assistant Returning Officer, other persons were also authorised before whom oath can be taken by the candidate.

( 6 ) OBJECTIONS to the validity of the nomination papers on account of defective oath were the subject-matter of judicial scruti