1954 (5) TMI 41

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....Ram Prakash appeal here. 3. The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner's nomination papers. The facts which led him to do so are as follows. The Rules require that each nomination paper should be "subscribed" by a proposer and a seconder. The petitioner put in four papers. In each case, the proposer and seconder were illiterate and so placed a thumb-mark instead of a signature. But these thumb-marks were not "attested". The Returning Officer held that without "attestation" they are invalid and so rejected them. The main question is whether he was right in so holding. A subsidiary question also arises, namely, whether, assuming attestation to be necessary under the Rules, an omission to obtain the required attestation amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951). 4. Section 33(1) of the Act requires each candidate to     "deliver to the Returning Officer....... a nomination paper completed in the prescribed form and subscribed by the candidate him....

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....he only method'; a stamped, or other mechanical impression of a signature is good, in the case of electioneering papers..........." 12. It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark. The General Clauses Act also says that -     "'sign'............. with reference to a person who is unable to write his name, includes 'mark'." 13. But this is subject to there being nothing repugnant in the subject or context of the Act. In our opinion, the crux of the matter lies there. We have to see from the Act itself whether "sign" and "subscribe" mean the same thing and whether they can be taken to include the placing of a mark. The majority decision of the Tribunal holds that "sign" and "subscribe" are not used in the same sense in the Act because a special meaning has been given to the word "sign" and none to the word "subscribe", therefore, we must use "subscribe" in its ordinary meaning; and its ordinary meaning is to "sign" but not to "sign" in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act f....

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....lliterate and ignorant persons and others likely to be imposed on, with special protective covering. 17. Now it is to be observed that section 2 calls itself an "interpretation" section. It says -     "(1) In this Act, unless the context otherwise requires     .............................     (k) 'sign' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed." 18. It is evident than that wherever the element of "signing" has to be incorporated into any provision of the Act is must be constructed in the sense set out above. Therefore, whether "subscribe" is a synonym for "sign" or whether it means "sign" plus something else, namely a particular assent, the element of "signing" has to be present : the schedule places that beyond doubt because it requires certain "signatures." We are consequently of opinion that the "signing," whenever a "signature" is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated....

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.... and as the Act sets out the only kinds of "signatures" which it will recognise as "signing" for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was therefore bound to reject them under section 36(2)(d) of the Act because there was a failure to comply with section 33, unless he could and should have had resort to section 36(4). 22. That sub-section is as follows :     "The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character." 23. The question therefore is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the attestation beca....