Kanhaiyalal
Vishindas Gidwani Vs. Arun Dattatray Mehta & Ors [2000] INSC 576 (16
November 2000)
S.N.Hegde
SANTOSH
HEGDE, J.
L.I.T.J
Being aggrieved by the judgment of the Designated Election Tribunal (High Court
of Judicature at Bombay) dated 23rd July, 1999 in Election Petition No.2/98, the appellant abovenamed has
preferred this appeal. For the sake of convenience, the parties will be
referred to as they were arrayed in the election petition before the High
Court.
The
petitioner filed the aforesaid election petition before the High Court
challenging the election of respondent No.1 to the Maharashtra Legislative
Council which was held on 18th of June, 1998 on the ground that the nomination
paper of respondent No.1 filed in the said election was invalid in law since
the same was not subscribed by the proposers as required under Section 33(1) of
the Representation of the People Act, 1951 (for short the Act) because the proposers
did not consciously propose the nomination of respondent No.1 and they had
signed only a blank form. He also contended that in the event of respondent
No.1s election being declared invalid, he is entitled to be declared as the
elected candidate.
Respondent
No.1 opposed the election petition contending that the petition was barred by
limitation as stipulated under Section 81 of the Act, and also for
non-compliance of the mandatory requirements of Sections 83 and 86 of the Act.
He further contended that since the petitioner had not objected to the validity
of his nomination paper before the Returning Officer, he is estopped from
questioning the same in a subsequent election petition. Respondent No.1 also
specifically denied the allegation that the 10 Congress MLAs referred to in para
8 of the election petition, had at any point of time, signed a blank nomination
paper. On the contrary, he asserted that the said 10 proposers signed his
nomination paper when his name was already filled in the nomination paper. It
was also alternatively pleaded that there is no statutory requirement that a proposer
must sign a nomination paper only when it contains the name of the candidate.
Based
on the pleadings in the petition, the High Court framed the following issues :-
1.
Whether Petitioner proves that nomination form submitted by Respondent No.1 is
invalid on the ground that the same was signed by 10 members of the legislative
Assembly, as proposers when the same was blank, thereby provisions of Section
100(1)(d)(i) of the Representation of People Act are violated.
2.
Whether election petition is barred by limitation having not been filed within
45 days from the date of election of Respondent No.1 viz. 18th June, 1998.
3.
Whether copy of Election Petition supplied to respondent Nos.1 and 7 is not
true copy and, therefore, Election Petition is liable to be dismissed on the
ground of breach of provision of Section 81(3) read with Section 83 and 86 of
the Representation of People Act.
4. Is
Petitioner entitled to declaration that he is duly elected candidate.
5.
Whether in the alternative, Petition is entitled to have fresh election for all
the 10 seats.
6. To
what relief petitioner is entitled to.
The
High Court after considering the pleadings on record and the arguments of the
parties, held issue Nos.2 and 3 against the respondent and no challenge has
been made to the said findings of the High Court before us. In regard to the
objection raised by the respondent No.1 as to the failure on the part of the
petitioner to object to his nomination paper before the Returning Officer, the
High Court came to the conclusion that once the challenge was to the improper
acceptance of the nomination paper of the returned candidate, the same can be
entertained by the High Court in an election petition also. In regard to the
question as to the 10 proposers signing a blank nomination paper, the High
Court after considering the evidence of PWs.
3 and
6 to 14, who are the 10 signatories to the nomination paper of respondent No.1,
came to the conclusion that when the proposers subscribed their signatures to
the nomination form of respondent No.1, it was blank. However, it came to the
further conclusion that since the said proposers had the knowledge as to who
the candidate was to be and that they had empowered the Party to propose such
candidate by signing the nomination form hence it held that there was no
invalidity attached to the said nomination. It also rejected the argument of
the petitioner that there was any difference in the meaning of the two words
signed and subscribed in the context in which they are used in the Act. In this
appeal, Mr. R.F. Nariman, learned senior counsel appearing for the
appellant-petitioner, contended that the High Court having rightly come to the
conclusion that the nomination paper in question was a blank paper at the time
when 10 proposers signed the same, it erred in coming to the conclusion that
the subsequent insertion of the name of respondent No.1 would not vitiate the
mandate of law. He contended that after the 1996 Amendment to the Act, by the
inclusion of the first proviso in Section 33, the Legislature had intended that
the persons proposing the name of a candidate who does not belong to a recognised
political party, had to do so consciously because the Act intended to eliminate
frivolous candidature. He argued that the Legislature by using the word
subscribed in place of the word signed with reference to a candidate not
belonging to a recognised political party, statutorily required the proposer to
do something more than merely sign the nomination paper. He further argued that
when the same Statute uses two different words, it should be understood that
the Legislature intended to use two different meanings.
If so
interpreted, he argued, the word subscribe used in the amended proviso meant something
different from the word signed as found in the said Section with reference to
the proposer of a recognised party candidate. He also contended that apart from
the legislative intent even the ordinary dictionary meaning would indicate that
the word subscribed meant something different from the word signed. Ascribing a
wider meaning to the word subscribe, he contended, in the context of nominating
a candidate would mean that there should be an element of application of mind
by the subscriber which cannot be present if a nomination paper is being signed
when it is blank. He also contended that it would be fallacious to hold that
the expression subscribe would mean nothing more than what the word sign means.
Thus,
he contended, the High Court was not justified in coming to the conclusion that
respondent No.1s nomination paper was valid even when it came to the conclusion
that the same was signed by the 10 proposers when it was a blank nomination
paper.
Mr. G
L Sanghi, learned senior counsel representing the first respondent, questioned
the finding of the High Court in regard to the fact that the nomination paper
in question was blank when it was signed by the proposers or that the proposers
did not know that the nomination paper was meant to be used by respondent No.
1. He contended that the High Court erred in accepting the evidence of the 10 proposers
on its face value; more so in view of the latter finding of the High Court
wherein it came to the conclusion that the 10 subscribers had signed the
nomination paper knowing very well that the same would be used by their party
for proposing an independent candidate. He strongly urged that it was not safe
to rely on the evidence of PWs.
3 and
6 to 14 when they stated that they had no knowledge that they were proposing
the name of respondent No.1, and that they had signed the nomination paper only
to propose their party candidate. He also contended that in the context in
which the Legislature has used the words subscribe and signed in Section 33,
there is hardly any difference between the two and both the words merely
intended to mean that the proposer had to sign the nomination paper in the
space provided therein.
From
the above arguments of the learned counsel, the following two points arise for
our consideration :
1. Is
the High Court justified in coming to the conclusion that the nomination paper
signed by the 10 proposers was blank ? 2. Does the introduction of the word
subscribed in Section 33(1) impose any obligation on the proposer of a
nomination paper of a candidate not belonging to a recognised political party
to apply his mind before appending his signature to such nomination form ? We
will now consider the first point framed by us for consideration in this
appeal. While considering the question whether the nomination paper was blank
when signed by respondent Nos.3 and 6 to 14, the evidence of the election
petitioner as PW-1 becomes irrelevant because he had no personal knowledge in
regard to the signing of the nomination paper by the said proposers. The proposers
who have actually signed the nomination paper have been examined in this case
as PW-3 and 6 to 14. PW-3 is Raosaheb Ramrao Patil. He in his cross-
examination stated that he signed a blank nomination form in the chamber of the
Leader of Opposition on 2.6.1998 which was given to him by the Private
Secretary to the Leader of Opposition Mr. Pichad. He admits that respondent
No.1 was a likely candidate in the said election. He also states that it was
the general practice of the party to obtain signatures on blank nomination
forms. It is seen from his evidence that on receipt of the show cause notices
from the party High Command, all the 10 proposers sat together and decided as
to what explanation was to be given to the General Secretary of the AICC. PW-6
- A.G. Dhatrak - also states that he signed a blank form as a proposer in the
Chamber of the leader of Opposition which was obtained by the Secretary to Mr.
Pichad.
He also admits that respondent No.1 was a likely candidate in the said
election. He further admits that all the 10 MLAs who signed the nomination form
sat together and prepared a reply to be sent to the party High Command. PW-7 - Shankarrao
Jagtap - is a 5th term Member of the Legislative Assembly and was a former
Speaker of the Legislative Assembly. He also stated that he signed the
nomination paper on or about 2.6.1998 in the Chamber of the leader of
Opposition when the form was blank. He stated that in the said form his
signature is found at serial No.2.
When
he signed the said nomination paper, Mr. Raosaheb Ramrao Patil (PW-3) and Dalip
Walse Patil (PW-13) were also present. According to him, many of the
signatories signed the nomination paper in the presence of each other. It is
seen from his evidence that on reading in the newspaper about the show cause
notice issued by the AICC, all the 10 signatories came to Delhi, received the show cause notices
and submitted their explanation. PW-8 is Kisanrao Sampatrao Jadhav whose
signature is found at serial No.5 in the nomination form. He first stated that
he signed the form on 3.6.1998 but later corrected himself to say that he
signed it on 2.6.1998 which is in conformity with the evidence of PW-7. He is a
3rd term MLA and an Engineer by profession.
He
admits that he is somewhat familiar with the election law. Still he says that
even though one signature of an MLA was enough to propose a party candidate, 10
signatures were taken as a measure of safety. This explanation, to our mind, is
somewhat curious. He also admits that some of the signatories to the nomination
form signed in his presence.
He was
aware of the fact that respondent No.1 was aspiring to become a candidate in
the said election. PW-9 is Kushal Parasram Bophe whose signature is found at
serial No.10 in the nomination form. He has stated that he did not know who he
was proposing when he signed the nomination form.
According
to him, the Secretary to the Leader of Opposition had asked him to sign the
nomination form, and he did not enquire whether the Leader of Opposition wanted
him to sign the form or the Secretary himself wanted him to sign. He later
stated that he was under the impression that Mr.
Pichad,
Leader of Opposition, must have told his Secretary to obtain his signature. He
had also been a Member of Parliament earlier. PW-10 is Krishnarao Rakamajirao
Desai whose signature is found at serial No.8. He also stated that he signed
the nomination form when it was blank. PW-11 is Mr. Marotrao S. Kowase who says
that his signature is found in the nomination form at serial No.4 and that he
signed the same when the candidates name was not filled in.
He
further stated that when he received a show cause notice, he replied to the
same but he does not remember the contents of the notice. He, however, admits
that all the 10 MLAs who received the notices, replied to the same taking
identical defence. He also stated that it is not open to party MLAs to sign a
nomination paper as a proposer of any candidate without the directive from the
party High Command. PW-12 is Deshmukh Sahebrao Sakojirao who also stated that
he signed the nomination paper when it was blank and that his signature is
found at serial No.3 therein. He stated that even though he did not receive a
show cause notice, he read about issuance of the same in the newspaper and came
to Delhi, got the notice and thereafter sent
his reply. He also admits that like others he took the defence that he had
signed a blank nomination form in the office of the leader of Opposition. He is
a 4th term MLA. PW-13 is Dilip Walse Patil whose signature is found at serial
No.1 in the nomination paper. He stated he signed the same on 2.6.1998 when it
was blank, and he was asked by the staff of Mr.
Pichad
to sign the same. He stated that he does not remember the name of the staff
member who had asked him to sign, and that it was the normal practice to sign a
blank nomination form. On coming to know from the newspaper that show-cause
notices have been issued to the signatories to the nomination form of
respondent No.1, he came to Delhi,
collected the show cause notice and replied thereto.
From
the evidence of these witnesses, it is seen that all of them have stated that
they signed blank nomination form because it was the practice of the party to
obtain signatures on blank forms, and on coming to know of the issuance of show
cause notice or in receipt thereof, they came to Delhi, collected the notices
in cases where they had not received the same, and sat together and deliberated
on the reply to be sent and agreed upon a common stand being taken and on the
said basis, they sent in similar replies wherein all of them stated that they
had signed a blank nomination form in the chamber of the Leader of Opposition.
It is
also clear from their evidence that all of them signed the nomination paper in
the chamber of the Leader of Opposition Mr. Pichad either at the request of Mr.
Pichad or his Secretary. These witnesses knew that only one signature was
necessary if their party candidate was to be proposed, even then they all
agreed to append their signatures to one nomination form. Many of them as a
matter of fact signed the nomination paper in the presence of each other. The
explanation given by some of the witnesses that it was as a measure of caution
that 10 signatures were obtained on the same nomination form is extremely
difficult to be accepted in the background of the fact that the law requires
only one signature if the nomination paper is to be used for a party candidate
of theirs. Therefore, the unified stand of these witnesses that they signed the
nomination paper for a party candidate has to be rejected on that count only.
The next stand as to the practice of the party to obtain signatures on the
blank nomination form to be utilised by the party candidate subsequently will
also have to be rejected because no registered party would develop a practice
to collect signatures in advance for proposing a candidate not belonging to
their political party and which requires 10 signatures to propose him as a
candidate. Such practice, in our opinion, does not sound logical. That apart,
if as a matter of fact the party did evolve a practice of that nature of
collecting so many signatures on one nomination form then we think the party
would not have issued them a show cause notice because their act was in
conformity with the party practice. On this score also, we are not inclined to
accept the explanation of the said witnesses that all their signatures on one
nomination paper were obtained as a practice of the party.
It may
be possible that the party might have evolved a practice to obtain advance
signature on a nomination form to propose its candidate to be decided at a
later date but since not more than one signature is required by law for
proposing a party candidate, the party would not have taken more than one
signature on a single nomination form. Such is not the case in hand. In the
instant case it is the case of the said witnesses that they were asked to put
their signatures on a single nomination form which would mean that the
signatures were being obtained for proposing a candidate other than their party
candidate. Therefore, the practice/custom put forth by these witnesses cannot
be accepted. From the evidence, as noticed hereinabove, it is clear that these
experienced legislators definitely had the knowledge that their signatures were
being taken to propose a candidate who is going to contest the elections as an
independent or will be used by a candidate not belonging to a registered
political party. Therefore, the question to be decided is: whether these
witnesses had either the knowledge who that candidate was going to be or
whether the name of such candidate was already there in the nomination paper or
not. While deciding this question of fact it becomes necessary to go into the
conduct of these witnesses.
Almost
everyone of them knew respondent No.1 who till the date of filing of nomination
paper was a party member of theirs. They also knew that he was aspiring to
contest the said elections. From the records, it can be seen (See Ground No.8
of the S.L.P.) that respondent No.1 was previously a member of the said party
as also a former Minister and a sitting MLC as a member of the Indian National
Congress, whose term was to expire on 7.7.1998.
The
signature of respondent No.1 on the nomination form was obtained in the chamber
of the Leader of Opposition who was a member of the Indian National Congress.
These witnesses signed on the nomination form at the request of the said Leader
of Opposition or his Secretary without questioning as to the candidate who was
going to utilise the said nomination paper. These facts, if taken in the
background of the fact that all these witnesses are experienced legislators,
would lead to one and the only irresistible conclusion that they appended their
signatures to the nomination form to propose a candidate who was not going to
contest the election as a member of their political party but who was a person
certainly known to them. That person in the context of the material available
on record can be none other than respondent No.1. From the evidence of these
witnesses it is also clear that it was not open to them to propose a candidate
in regard to whom there was no directive from their High Command. Therefore, it
is reasonable to infer that these candidates would not have signed a blank
nomination form with 10 signatures lest the same should be misused and they be
put into trouble. Hence, unless they were certain who that candidate was, they
would not have signed the nomination form. Therefore, it is reasonable to
presume, as is the normal practice, that the proposers signed the nomination
form when the name of the contesting candidate whom they were proposing was
incorporated in the nomination paper, and in the instant case such name could
have been only that of respondent No.1.
Inspite
of the above inference of ours, we will have to still consider the evidence of
these witnesses as to why all of them deposed that they signed a nomination
form when it was blank. The answer to this question is not far to seek. It is
to be noted that after the election of respondent No.1 these witnesses either
came to know or received show cause notices issued by the party High Command
seeking their explanation as to the circumstances under which they came to
propose the name of respondent No.1. The evidence on record shows that all
these witnesses after concerted plan decided to tell the High Command that the
nomination paper was signed by them when it was blank and that they had
intended to propose a party candidate. The language used in the reply and the
evidence of these witnesses go to show that all of them together decided on the
nature of the reply. That also shows that there was an effort to extricate themselves
from the likely disciplinary action by the High Command. The High Command
having accepted such explanation, these witnesses had no way out but to stick
to that stand even before the court which they did in not a very convincing
manner. Their parrot-like statement that they signed a blank nomination form
runs counter to the ordinary commonsense and reasoning. Their conduct in not
questioning the Leader of Opposition for having misused their signatures after
they came to know that it was used for nominating respondent No.1, in our
opinion, belies their statement that they were ignorant of the fact who they were
proposing or that they signed a blank nomination form. It is to be noted that
their evidence is in the nature of an interested witness because if they had
deposed differently and admitted that they had signed the nomination paper of
respondent No.1 then there was every likelihood of the High Command reopening
disciplinary proceedings against them. Therefore, they had to stick to the
stand that they had already taken in reply to the show cause notice. In view of
this self-preservation instinct, it had become necessary for them to depose
before the court that they had signed only a blank paper. In that view of the
matter, their evidence cannot be accepted sans independent corroboration of the
same. Their evidence could have been corroborated if Mr. Pichad or his Secretary
who allegedly asked them to sign the nomination paper, were to be examined. But
that not having been done, we must draw an adverse inference. Therefore, we are
of the considered opinion that it is not possible to place reliance on the
evidence of these witnesses in order to come to the conclusion that they signed
a blank nomination paper. In our opinion, the normal practice (though not
required by law) of proposing a candidate to an election would require the proposer
to sign the nomination form when it contains the name of the candidate he
intends to propose. Since the petitioner has propounded a practice contrary to
the normal one, the burden lay on him to establish that the proposers in the
instant case had signed a blank nomination paper, and he having failed to
discharge the said onus his contention in this regard must fail.
At
this stage, we must also notice that acceptance of this type of oral evidence
on its face value will lead to serious repercussions on the results of
elections held under the Act in this country. It is possible that a single
disgruntled or motivated proposer by such evidence before the Election Tribunal
could upset the result of a valid election, therefore, courts should be
extremely cautious and be on guard while scrutinising such evidence wherein the
result of election of a validly elected candidate could be in jeopardy. It is
necessary in such cases that the courts should seek independent corroboration.
In the instant case even minimal corroboration is not forthcoming, as stated
above. Hence, we decline to place reliance on the evidence of PWs.3 and 6 to
14.
To
this extent, we are of the opinion that the finding of the High Court that the
nomination form was blank when signed by these witnesses, has to be reversed
because the said finding is based on the face value of the evidence of PWs.3
and 6 to 14 which we have held unacceptable without corroboration.
Even
though the above finding of ours is sufficient to dismiss this appeal, it is
necessary to deal with another aspect of the case which also arose for
consideration before the High Court and in regard to which arguments were
addressed before us also. As stated earlier, it is contended on behalf of the
petitioner that first proviso to Section 33(1) of the Act imposes an obligation
on the proposers of the nomination to apply their mind while proposing the name
of an independent candidate. This argument is based on the language of 1st
proviso to Section 33(1) which reads thus :
33.
Presentation of nomination paper and requirements for a valid nomination.- (1)
On or before the date appointed under clause (a) or section 30 each candidate
shall, either in person or by his proposer, between the hours of eleven oclock
in the forenoon and three o clock in the afternoon deliver to the returning
officer at the place specified in this behalf in the notice issued under
section 31 a nomination paper completed in the prescribed form and signed by
the candidate and by an elector of the constituency as proposer:
Provided
that a candidate not set up by a recognised political party, shall not be
deemed to be duly nominated for election from a constituency unless the
nomination paper is subscribed by ten proposers being electors of the
constituency: (emphasis supplied) It is seen from Section 33(1) that a
nomination paper of a registered party candidate has to be signed by an elector
of the constituency as proposer while under the first proviso a nomination
paper of a candidate not set up by a recognised political party has to be
subscribed by 10 proposers being electors of the constituency. Based on that an
argument is advanced that while the nomination paper of a party candidate has
to be merely signed by a proposer, the Statute has deliberately cast a duty on
the proposer of a candidate not belonging to a recognised political party to
subscribe to such nomination form as against merely signing the same. It is
contended by using the word subscribed, the Legislature has intended that in
regard to a non-recognised party candidate the proposer should do something
more than merely signing such nomination paper i.e., there should be an element
of application of mind by the subscriber before proposing such candidate; may
be as to his suitability as a candidate. This, according to the appellant-petitioner,
is clear from the deliberate language of the proviso. It is contended that it
would be fallacious to hold that the expression subscribed would mean nothing
more than the word signed as has been held by the High Court. The High Court
rejecting the said argument noticed the fact that while the word sign is
defined under Section 2(1) of the Act, the word subscribe is not defined either
in the Act or under the Rules. It also considered the various dictionary
definitions of the word subscribe with reference to the arguments addressed on
behalf of the election petitioner. The High Court also noticed the observations
of this Court in regard to use of the words subscribe and sign found in the Act
in the case of Rattan Anmol Singh & Anr. v. Atma Ram & Ors. (1955 1 SCR
481) and came to the conclusion that there is no difference in the two
expressions in the context in which they are used in the Statute. While coming
to this conclusion the High Court also noticed the use of the word subscribed
found in Section 33(1A) of the Act. We have carefully considered the arguments
addressed in this behalf before us. It is true that when the same Statute uses
two different words then prima facie one has to construe that these different
words must have been used to mean differently. But then we will have to
consider the context in which it is used. In the present case, it is to be
noted that these two words are used with reference to proposing a candidate at
an election contemplated under the Act. The word sign is used with reference to
proposing a candidate of a recognised party candidate while the word subscribe
is used for proposing the candidature of a non-recognised political party
candidate. The argument of the petitioner is that the Legislature has
deliberately by a subsequent amendment used a different word in regard to the
candidate of an unrecognised political party to prevent frivolous candidature.
It is also contended that apart from using the word subscribe the number of
persons required to propose such candidates was also increased to 10 under the
1996 Amendment. By this it is argued that there is an obligation on the part of
the proposer to apply his mind as to the suitability of the candidate to
contest in such elections and the same should not be done mechanically. The
petitioner has also placed reliance on the judgment of this Court in the case
of Rattan Anmol Singh (supra). We are not inclined to accept this argument
also. As held by the High Court, it is not for the first time in 1996 that the
Legislature used this word subscribed in the Act. That word was in existence in
the Statute since the year 1975 in Section 33(1A) of the Act which reads thus :-
(1A) Notwithstanding anything contained in sub-section (1), for election to the
Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that
State duly constituted under the Constitution), the nomination paper to be
delivered to the returning officer shall be in such form and manner as may be
prescribed:
Provided
that the said nomination paper shall be subscribed by the candidate as
assenting to the nomination, and (a) in the case of a seat reserved for Sikkimese
of Bhutia-Lepcha origin, also by at least twenty electors of the constituency
as proposers and twenty electors of the constitutency as seconders; (b) in the
case of a seat reserved for Sanghas, also by at least twenty electors of the
constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an
elector of the constituency as proposer: (emphasis supplied).
As per
this sub-section, it is seen that in regard to all the categories of seats
enumerated in sub-clauses (a) to (c), the nomination papers will have to be
subscribed by the candidate as assenting to the nomination paper and by the proposers
and seconders as such. Therefore, it is seen in this Section that the
Legislature uses the word subscribed both in regard to the candidate as well as
the proposers and seconders which would negative the distinction drawn by the
petitioner in regard to the use of the words subscribed and signed in Section
33(1) and so also the legislative intent sought to be incorporated by the
petitioner. In the context in which the word subscribed is used in Section 33(1A)
shows that the Legislature did not intend to use this word in any manner
differently from the use of the word signed. Therefore, we are not inclined to
accept the argument of the petitioner that when the Legislature used the word
subscribed in Section 33(1) of the Act, it intended it to mean something more
than merely signing.
As
stated above, the petitioner in support of the above contention has relied on
the following observations of this Court in the case of Rattan Anmol Singh
(supra):
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 candidates
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 candidates signature imports more than a mere
vouching for the accuracy of the 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. (emphasis supplied).
The
above observations of this Court cannot be accepted as a ratio laid down. In
our opinion, it is only an observation without laying down the principle which
the petitioner is trying to deduce in his arguments. This view of ours is clear
from the following further discussion of this Court in the said case :
Now if
subscribe can mean both signing, properly so called, and the placing of a mark
(and it is clear that the word can be 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 it. x x x
(emphasis supplied).
For
this reason also we agree with the finding of the High Court that the
expression subscribe in the proviso cannot be read differently from the
expression sign used in Section 33. Therefore, this contention of the
petitioner is also rejected. For the reasons stated above, the appeal is
dismissed with costs.
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