TMI Blog1968 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Assembly. The election to that Assembly from the Dumraon Assembly Constituency was held during the last general elections as per the following schedule : (a) Date of filing nomination papers - 13-1-1967 to 20-1-1967. (b) Date of scrutiny of nomination papers - 21-1-1967. (c) Last date of withdrawal of candidatures - 23-1-1967. (d) Date of poll - 17-2-1967. (e) Date of counting of votes - 23-2-1967. (f) Date of declaration of result of the election - 23-2-1967 . 3. 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 bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s. 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. 6. It was suggested by the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. He is also required to sign a certificate stating the date on which and the hour at which the nomination paper has been delivered to him, and also to cause to be fixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer. 9. Then comes s. 36, relevant portion of which reads as follows : 36. Scrutiny of nominations. - (1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature of a State unless he - (a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule. The form referred to reads as under : Form of oath or affirmation to be made by a candidate for election to the Legislature of a State :- 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 India as by law established and that I will uphold the sovereignty and integrity of India . 11. The words having been no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiny in s. 36(2)(a) means on the whole of the day on which the scrutiny of nomination has to take place . In other words, the qualification must exist from the earliest moment of the day of scrutiny. It will be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of s. 36(2) of the Act and other provisions. On the date of the scrutiny the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts. In a particular case, an objection may be taken to the form of the oath; the form of the oath may have been modified or the oath may n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct of Elections Rules, 1961. It was pointed out that in this form there is no place where it can be stated by the candidate that he had taken the requisite oath or affirmation. But, this in our view does not mean that the oath or affirmation can be taken and subscribed on the date fixed for scrutiny. It seems to us that the nomination paper does not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated. 18. Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v. Kapildeo Narain Singh [Election Appeal No. 4 of 1965; judgment dated September 22, 1965]. That decision proceeded on the basis that one can be said to be so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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