IMPORTANT POINT
The expression subscribe in Proviso to Section 33(1) of the Representation Act, 1951 cannot be read differently from the expression signed used in Section 33.

JUDGMENT

Santosh Hegde, 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 above named 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.

2. 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.1 s election being declared invalid, he is entitled to be declared as the elected candidate.

3. 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.

4. 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."

5. 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.