Judgment

Bose, J. : These are two appears against the decision of the Election Tribunal at Ludhiana.

2. The contest was for two seats in the Punjab 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 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 the reserved. Atma Ram filed the present election petition. The Election Tribunal decided in his favour by a majority of two to one and declared the whole election void. Rattan Anmol Singh and 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 fact 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 is so holding. A subsidiary question also arises, namely, whether assuming attestation to be necessary under the Rules, an omission to obtain the required attestation amount 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 (43 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 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 proposer or seconder as many nomination papers as there are vacancies to be filed.........."

The controversy centres on the word "subscribed" which has not been defined in the Act.

5. The prescribed nomination form referred to in sub-section (1) of Section 33 is to be found in Schedule II*. In this form we have the following :

* This is Sch. II to the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951- Ed.

"9. Name of the Proposer

.....................................

12. Signature of the proposer

13. Name of the seconder

............................................

16. Signature of the seconder."

6. 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 singing one s name; to attest by singing."

This appears to be its modern meaning, and is also one of the meaning given to the word "sign" namely, "to attest or confirm by adding one s signature; to affix one s name to (a document) etc."

One also finds the following is 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 met