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PETITIONER:

RATTAN ANMOL SINGH AND ANOTHER

Vs.

RESPONDENT:

ATMA RAM AND OTHERS.

DATE OF JUDGMENT:

21/05/1954

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

MUKHERJEA, B.K.

AIYYAR, T.L. VENKATARAMA

CITATION:

1954 AIR 510 1955 SCR 481

CITATOR INFO :

F 1956 SC 140 (2)

R 1959 SC 93 (15,16)

E&R 1960 SC1049 (16)

R 1970 SC 110 (4)

E 1973 SC 178 (9)

ACT:

Representation of the People Act, 1951 (XLIII of 1961),

ss. 2 (1)(k), 33(1) and (2),36(2)(d) and (4)-Representation

of the People (Conduct of Elections and Election Petitions)

Rules, 1951, r. 2(2)--Nomination paper-Subscribed by

illiterate proposer and seconder Containing thumb-mark

instead of signatures-No attestation thereof Validity of-

Attestation-Whether a necessary formality-At what stage it

must exist- Whether can be validated at scrutiny stage.

HEADNOTE:

Under section 33(1) of the Representation of the People Act,

1951, each nomination paper should be "subscribed" by a

proposer and a seconder. Where the proposer and the

seconder of a nomination paper (as in the present case) are

illiterate and so place thumb-marks instead of signatures

and those thumb-marks are not attested, the nomination paper

is invalid as attestation in the prescribed manner in such a

case is necessary because of rule 2(2) of the Representation

of the People (Conduct of Elections and Election Petitions)

Rules, 1951, which requires it.

Signing, whenever signature is necessary, must be in strict

accordance with the requirements of the Act and where the

signature cannot be written it must be authorised in the

manner prescribed by the Rules.

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482

Attestation is not a more technical or unsubstantial

requirement within the meaning of section 36(4) of the Act

and cannot be dispensed with.

The attestation and the satisfaction must exist at the

presentation stage and a total omission of such an essential

feature cannot be subsequently validated at the scrutiny

stage any more than the omission of a candidate to sign at

all could have been.

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Section 36 of the Act is mandatory and enjoins the Returning

officer to refuse any nomination when there has been "any

failure to comply with any of the provisions of section 33."

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 213A and

213B of 1953.

Appeals by Special Leave against the Judgment and Order

dated the 24th June, 1953, of the Election Tribunal,

Ludhiana, in Election Petition No. 153 of 1952.

C. K. Daphtary, Solicitor-General for India, (Harbans

Singh Doabia and Rajinder Narain, with him) for the

appellant in Civil Appeal No. 213A.

Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in

Civil Appeal No. 213A and the appellant in Civil Appeal No.

213B.

Naunit Lal for respondents Nos. 3 and 19 in both the

appeals.

1954. May 21. The Judgment of the Court was delivered

by

BOSE J.-These are two appeals against the decision of the

Election Tribunal at Ludhiana.

The contest was for two seats in the Pun jab Legislative

Assembly. The constituency is a double member constituency,

one seat being general and the other reserved for a

Scheduled Caste. The first respondent is Atma Ram. He was

a candidate for the reserved seat but his nomination was

rejected by the Returning Officer at the scrutiny stage and

so he was unable to contest the election. The successful

candidates were Rattan Anmol Singh, the appellant in Civil

Appeal No. 213-A of 1953, for the general seat and Ram

Prakash, the appellant in Civil Appeal No. 213-B of 1953 for

there served. Atma Ram filed the present election petition.

The Election :Tribunal decided in

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his favour by a majority of two to one and declared the

whole election void. Rattan Anmol Singh and Ram Prakash

appeal here.

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).

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 himself as assenting to the nomination and by two

persons referred to in sub-section (2) as proposer and

seconder."

Sub-section (2) says that-

"any person whose name is registered etc... may subscribe as

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proposer or seconder as many nomination papers as there are

vacancies to be filled........

The controversy centers on the word "subscribed" which has

not been defined in the Act.

The prescribed nomination form referred to in subsection (1)

of section 33 is to be found in Schedule II. In this form

we have the following:-

"9. Name of the proposer

12. Signature of the proposer

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13. Name of the seconder..................................

16. Signature of the seconder."

The Oxford English Dictionary sets out thirteen shades of

meaning to the word ',subscribe", most of them either

obsolete or now rarely used. The only two which can have

any real relation to the present matter are the following:

1. "To write (one's name or mark) on, originally at

the bottom of a document, especially as a witness or

contesting party; to sign one's name to."

This meaning is described as "rare."

2. "To sign one's name to; to signify assent or

adhesion to by signing one's name; to attest by signing."

This appears to be its modern meaning, and is also one of

the meanings given to the word "sign", namely "to attest or

confirm by adding one's signature; to affix one's name to (a

document) late."

One also finds the following in Stroud's Judicial

Dictionary, 3rd edition:

"Subscribe. (1) 'Subscribe' means to write under something

in accordance with prescribed regulations where any such

exist But though this is the strict primary meaning of the

word, it may sometimes, e.g., in the attestation of a will,

be construed as 'to give assent to, or to attest' or

'written upon

"(3) 'Subscription is a method of signing; it is not the

only method'; a stamped, or other mechanical impression of a

signature is good, in the case of electioneering papers..."

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'

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

485

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 I 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 for

its ordinary meaning and that shows that when it is used in

its ordinary sense it includes the making of a mark.

We agree with the learned Chairman of the Tribunal that

this is fallacious reasoning. The General Clauses Act does

not define the word "subscribe" any more than the

Representation of the People Act, and if it is improper to

exclude the special meaning given to " sign " in the

Representation of the People Act because the word "sign " is

defined and not " subscribe," it is equally improper to

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import the special definition of " sign " in the General

Clauses Act because that also defines only "sign" and not

"subscribe" and also because the " subject " and " context "

of the Representation of the People Act show that the

writing of a signature and the making of a mark are to be

treated differently.

The learned counsel for the respondent-analysed the Act

for us and pointed out that the word " subscribe " is only

used in Chapter I of Part V dealing with the Nomination of

Candidates while in every other place the word " sign " is

used. We do not know why this should be unless, as was

suggested by the learned Solicitor-General, the Legislature

wished to underline the fact that the proposer and seconder

are not merely signing by way of attesting the candidate's

signature to the nomination form but are actually themselves

putting the man forward as a suitable candidate for election

and as a person for whom they are prepared to vouch, also

that the candidate's signature imports more than a mere

vouching for the accuracy of the

486

facts entered in the form. It imports assent to his

nomination. We think the learned Solicitor-General is

probably right because section 33 speaks of

"a nomination paper completed in the prescribed form and

subscribed by the. candidate himself as assenting to the

nomination."

But however that may be, it.is evident from the form that "

signatures are required. It is also evident from the

definition of sign " that the Legislature attached special

importance to the fact that in the case of illiterate

persons unable to write their names it is necessary to guard

against misrepresentation and fraud by requiring that their

signatures should be formally authenticated in a particular

way. A special statutory cloak of protection is thrown

around them just as the ordinary law clothes pardanish in

women and illiterate and ignorant persons and others likely

to be imposed on, with special protective covering.

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."

It is evident then that wherever the, element of signing "

has to be incorporated into any provision of the Act it must

be construed 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 "

signature*. " 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 importance to the authorisation is not

for us to decide. What is beyond

487

dispute is that this is regarded as a matter of special

moment and that special provision has been made to meet

-such cases. We are therefore bound to give full affect to

this policy.

Now if " subscribe " can mean both signing, so called,,

and the placing of a mark (and it is clear the word can be

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used in both senses), then we feel that we must give effect

to the general policy of the Act by drawing the same

distinction between signing, and the making of a mark as the

Act itself does in the definition of "sign." it is true the

word "subscribe" is not defined but it is equally clear,

when the Act is read as' a whole along with the form in the

second schedule, that "subscribe" can only be used in the

sense of making a signature and as the Act tells us quite

clearly how the different types of " signature " are to be

made, we are bound to give effect, to ft. In the case of a

person who is unable to write his name his " signature "

must be authenticated in " such manner as may be pres-

cribed." The prescribed manner is to be found in rule 2(2)of

the Representation of the People (Conduct of Elections and

Election Petitions) Rules, 1951. It runs as follows :

" For the purposes of the Act or these rules,, a person who

is unable to write his name shall, unless otherwise

expressly provided in these rules, be deemed to have signed

an instrument or other paper if he has, placed a mark on

such instrument or other paper in the presence of the

Returning Officer or the presiding officer or such other

officer as may be specified in this behalf by the Election

Commission and such officer on being satisfied as to his

identity has attested the mark as being the mark of such

person."

In view of this we are clear that attestation in the

prescribed manner is required in the case of proposers and

seconders who are not able to write their names.

The four nomination papers we are concerned with were

not " signed " by the proposers and seconders in the usual

way by writing their names, and as their marks are not

attested it is evident that they have not been " signed ",

in the special way which the Act

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requires in such cases. If they are not " signed " either

in one way or the other, then it is clear that they have not

been " subscribed " because " subscribing " imports a

"signature" and as the Act sets out the only kinds of

"signatures" which it will recognise as II 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). 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."

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 because of some slip on his part and it could be

proved that he was satisfied at the proper time, the matter

might be different because the element of his satisfaction

at the proper time, which is of the substance, would be

there, and the omission formally to record the satisfaction

could probably, in a case like that, be regarded as an

unsubstantial technicality. But we find it impossible to

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say that when the law requires the satisfaction of a

particular officer at a particular time his satisfaction can

be dispensed with altogether. In our opinion, this

provision is as necessary and as substantial as attestation

in the cases of a will or a mortgage and is on the same

footing as the II subscribing " required in the case of the

candidate himself If there is no signature and no mark the

form would have to be rejected and their

489

absence could not be dismissed as technical and unsubs-

tantial. The "satisfaction " of the Returning Officer which

the rules require is not, in our opinion, any the, less

important and imperative.

The next question is whether the attestation can be

compelled by the persons concerned at the scrutiny stage.

It must be accepted that no attempt was made at the

presentation stage to satisfy the Returning Officer about

the identity of these persons but evidence was led to show

that this was attempted at the scrutiny stage. The

Returning Officer denies this, but even if the identities

could have been proved to his satisfaction at that stage it

would have been too late because the attestation and the

satisfaction must exist at the presentation stage and a

total omission of such an essential feature cannot be

subsequently validated any more than the omission of a

candidate to sign at all could have been. Section 36 is

mandatory and enjoins the Returning Officer to refuse any

nomination when there has been

" any failure to comply with any of the provisions of

section 33............... The only jurisdiction the Return-

ing Officer has at the scrutiny stage is to see, whether the

nominations are in order and to hear and decide objections.

He cannot at that stage remedy essential defects or permit

them to be remedied. It is true he is not to reject any

nomination paper on the ground of any technical defect which

is not of a substantial character but he cannot remedy the

defect. He must leave it as it is. If it is technical and

unsubstantial it will not matter. If it is not, it cannot

be set right.

We agree with the Chairman of the Election Tribunal, that

the Returning Officer rightly rejected these nomination

papers. The appeals are allowed with costs and the order of

the Election Tribunal declaring the elections of the two

successful candidates to be wholly void is set aside. The

election petition is dismissed, also with costs.

Appeals allowed,

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