- (1.) The only question raised in this appeal from a judgment and order of the High Court of Gujarat dismissing an election petition is, whether the returned candidate was not qualified to be chosen to fill a seat of the State Legislative Assembly inasmuch as he did not subscribe to an oath or affirmation according to the form set out for the purpose in the third Schedule to the Constitution as prescribed under Article 173 thereof.
(2.) The relevant facts may be stated as follows: The notification of the Governor of Gujarat under Section 15 (2) of the Representation of the People Act of 1951 for the purpose of election to the Gujarat State Legislative Assembly was issued on January 13, 1967. Nomination papers were filed by several persons including the returned candidate and the scrutiny thereof was made on January 21, 1967. The poll took place on February 18, 1967 and the result declared on February 27, 1967 showing the returned candidate wining comfortably by a margin exceeding 3800 votes over his nearest rival. One of the grounds taken in the election petition was that immediately after the scrutiny of the nomination papers, the third respondent to the election petition has filed a written objection before the Returning Officer contending that the returned candidate had not taken oath properly and on the same ground he along with respondents 2 and 4 were not qualified to be chosen and their nomination papers should be rejected. This contention was turned down by the Returning Officer and was also negatived by learned Judge who heared the election petition and in this appeal the unsuccessful petitioner has only pressed this ground.
(3.) The relevant portion of Article 173 of the Constitution reads as follows:- "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) xx xx xx." The Third Schedule contains various forms of oath or affirmation. Form VII-A, the relevant form for the present purpose is, as follows: "Form of oath or affirmation to be made by a candidate for election to the Legislature of State:- "I, A. B., having been nominated as a candidate to file a seat in the Legislative Assembly (or Legislative Council), swear in the name of God do____________________ that I will solemnly affirm 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.";