Mohan Reddy vs Neelagiri ralidhar Rao

K. Subba Rao, C.J.—This is an appeal against the order of the Election Tribunal, Hyderabad, declaring that the election of the appellant to the Andhra Pradesh Legislative Assembly from Buggaram Assembly Constituency at the recent elections was void.

On 19-1-1957, the Governor of Andhra Pradesh issued a notification for the holding of the elections to the Andhra Pradesh Legislative Assembly from the Buggaram Assembly constituency. The appellant one Venkateshwar Rao and others filed their nomination papers in respect of the elections with the Returning Officer. Venkateshwar Rao was registered in the electoral roll of Yeshwantharaopet village situated in Gollapalli Revenue Circle of Jagtial Taluk previously part of Buggaram constituency but transferred by order of the Government dated 7-1-1957 to Mydaram constituency.

Three of the four nomination papers filed proposing Venkateshwar Rao were not accompanied by certified copies of the relevant entry of the electoral roll in which Venkateshwar Rao''s name was registered. But along with the fourth nomination paper proposed by Rajanna, a copy purporting to be a certified copy of the relevant entry of the said electoral roll was filed. The nomination paper was received by the Returning Officer but he subsequently rejected it on the ground that it was not accompanied by a validly certified copy of the entry relating to the candidate by the concerned electoral Registration Officer.

After the said rejection, the appellant was duly elected from the Buggaram constituency. The respondent, who is an elector of the Buggaram Assembly constituency presented an election petition under S. 81 of the Representation of People Act (hereinafter referred to as the Act for declaring the election void on the ground that the nomination paper of Venkateshwar Rao was illegally rejected by the Returning Officer. The appellant filed a counter sustaining the action of the Returning Officer. The Tribunal framed the following issues on the pleadings.

Is the petitioner an elector in Buggara (sic) Assembly Constituency?

Does the alleged certified copy fil(sic) along with the nomination paper in which R(sic) anna is the proposer, satisfy the requirements of S. 33 (5) of the Representation of the Peoples Act, 1951?

Whether the Returning Officer on the basis of the alleged certified copy referred in issue 2 did not satisfy himself on the presentation of the nomination papers that the na(sic) and electoral number of the candidate entered in the nomination paper are the same as en(sic)ed in the electoral roll ?

Did the candidate concerned pray (sic) time before the Returning Officer to prod(sic) the printed copy of the relevant part of (sic) electoral roll or Mydaram Constituency and (sic) the returning officer refuse to grant time ? If (sic) what is its effect ?

If issue No. 2 is found in the Negat(sic) is the defect in the alleged certified copy of(sic) substantial character ?

Has the nomination of Shri Venkat (sic) war Rao been improperly rejected ? If so, (sic) is its effect on the election of the respondent.

On the first issue, the Tribunal (sic) that the respondent was an elector in the (sic) garam Assembly Constituency. On issue 2 (sic) round that the certified copy filed along with the nomination paper satisfied the requirements of S. 33 (5) of the Representation of the Peoples Act. On issue 3, the finding was that the (sic) turning Officer satisfied himself on the pr(sic) tation of the nomination paper that the (sic) and the electoral roll number of the candidate entered in the nomination paper are the (sic) as those entered in the electoral roll. On (sic) 4, he came to the conclusion that Venkateshawar Rao did not pray for time before the Retu(sic) Officer to produce the printed copy of the relevant part of the electoral roll of the Myd(sic) Constituency. On issue 5, the Tribunal (sic) pressed the view that even if there was a (sic) in the certified copy under consideration (sic) was not of a substantial character. In view of the aforesaid findings, the Tribunal decided under S. 100 (1) (c) of the Act that the el(sic) of the returned candidate was void. The re(sic)ed candidate preferred the above appeal as(sic) that order.

The main question in the appe(sic) whether the rejection of the nomination (sic) of Venkateshwar Rao by the Returning (sic) was valid. The answer to the said question turns upon the interpretation of the m(sic) provisions of the Act. The following a(sic) relevant provisions:

Section 33:

(4) On the presentation of a nomination paper the Returning Officer shall satisfy himself that the names and the electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as whose entered in the electoral rolls:

Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries of the electoral rolls; and where necessary, direct (sic)at any clerical or printing error in the said (sic)tries shall be overlooked.

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll (sic) that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the Returning Officer at the time of (sic)rutiny.

Section 36-

(2) The returning officer shall then examine the nomination papers and shall decided objections which may be made to any nomination, and may, either on such objection or (sic) his own motion, after such summary enquiry if any as he thinks necessary, reject any nomination on any of the following grounds:

* * * *

(b) that there has been a failure to comply with any of the provisions of Section 33....

(4) The returning officer shall not reject (sic) nomination paper on the ground of any (sic)ect which is not of a substantial character.

(5) The returning officer shall hold the (sic)tiny on the date appointed in this behalf....

Provided that in case an objection is made (sic) candidate concerned may be allowed time (sic)rebut it not later than the next day but one (sic) showing the date fixed for scrutiny, and the returning officer shall record his decision on the (sic) to which the proceedings have been ad(sic)ned.

(7) For the purposes of this section, a cer(sic)d copy of an entry in the electoral roll for (sic) time being in force of a constituency shall conclusive evidence of the fact that the per-(sic) referred to it in that entry is an elector for (sic) constituency, unless it is proved that he is (sic)ect to a disqualification mentioned in S. 16 of (sic) representation of the People Act, 1951 (43 (sic) 1951).

(sic)E 31 OF THE REPRESENTATION OF (sic)PLE (PREPARATION OF ELECTORAL (sic)LS) RULES 1956:

(sic) CUSTODY AND PRESERVATION OF (sic)CTORAL ROLLS AND CONNECTED (sic)ERS:

After the electoral roll for a constitu-(sic) has been finally published, the following (sic)rs shall be kept in the office of the electoral (sic)tration officer or at such other place as the (sic) Electoral # Officer may by order specify trotil the final publication of the next electoral roll for the constituency:

(a) One complete copy of the electoral roll.

The gist of the aforesaid provisions may be stated thus. On the presentation of a nomination paper, the returning officer shall satisfy himself that the name and the electoral roll number of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. If a candidate is an electoral of a different constituency, either a copy of the electoral roll or a certified copy of the relevant entries of the roll may either be filed along with the nomination paper or produced at the time of the scrutiny.

At the time of the scrutiny, the Returning Officer shall reject a nomination paper, if such a copy or a certified copy of the relevant entries was neither filed along with the nomination paper nor produced at the time of the scrutiny. But, he shall not reject a nomination paper on the ground of a defect, which is not of a substantial character. Learned counsel for the appellant contends that a duty is cast upon a Returning Officer to satisfy himself on the basis of a certified copy of the relevant entries in the electoral roll of a different constituency that a candidate''s name is on that roll and therefore the non-reproduction of such a copy is a defect of a substantial character which leaves no option to the Returning Officer but to reject the nomination paper.

He would go further and contend that non-compliance with the mandatory provisions of S. 33, which is the basis for the satisfaction of the Returning Officer, entails a rejection under S. 36 (2) (b) and that the provisions of S. 36(4) do not apply to such a case but only to defects which are not of a substantial character not covered by sub-section 2 of S. 36.

Before considering whether the Provisions of S. 33(5) have been strictly complied with or not, it may be convenient to dispose of the contention based on the interpretation of S. 36 (2) and (4) of the Act. Under S. 36 (2) the Returning Officer may either on objections raised or on his own motion, after making a summary enquiry reject any nomination on the ground that there has been a failure to comply with any of the provisions of S. 33. Under sub-s. 4, he shall not reject any nomination paper on the ground of any defect, which is not of a substantial character.

Sub-section 2 enables him to reject a nomination paper but sub-s. (4) enjoins on him not to do so, if the defect is not of a substantial character. If we read both the sub-sections as dealing with different subject-matters, it will lead to the position that even formal or verbal defects not in compliance with the provisions mentioned in sub-s. 2 would have the irretrievable result of a nomination paper being rejected by the returning officer. That could not have been the intention of the Legislature, for the scheme of the Act indicates that voters shall not be deprived of their right to stand for election on technical defects or defects of an unsubstantial character.

The words "may reject any nomination" in sub-s. 2 and the words "shall not reject any nomination" in sub-s. 4 in the context only indicates that, in the case of non-compliance with the provisions of specified sections, the officer is authorised to reject. But, even in such cases, a mandatory duty is enjoined on him not to reject if the defects are not of a substantial character. In effect, sub-s. 4 is really a proviso to sub-s. 2. In this view, we hold that sub-s. 2 and sub-s. 4 do not deal with two different subject matters but are intended to operate in the same field, one softening the rigour of the other.

The next question is whether the provisions of sub-s. 5 of S. 33 have been complied with. It is contended that a copy of the relevant entries in the electoral roll filed along with a nomination paper was not a certified copy of the electoral roil within the meaning of sub-s. 5 of S. 33 of the Act. Shortly stated, the contention is that a certified copy under the section is a certified copy as defined under S. 76 of the Evidence Act and that the copy produced does not comply with the provisions of that section.

The copy was issued by the peshkar, who signed it for the Deputy Collector. It contains the seal of the Deputy Collector, Pedapalli. It is certified to be a true copy by the Record Keeper. The Deputy Collector of Peddapalli is admittedly the Electoral Registration Officer for Buggaram Assembly Constituency. P. W. 2 is the peshkar in the office of the Deputy Collector, who has been working in the said office for three years. He describes how a copy of the relevant entry in the electoral roll was issued to Venkateshwar Rao.

Venkateshwar Rao filed an application on 22-1-1957 in the office of the Deputy Collector, Peddapalli for a certified copy. On the application, the Deputy Collector made an order and signed it directing the peshkar to issue a certified copy as prayed for. In pursuance of that order, he furnished a certified copy with the seal of the Deputy Collector''s office. As regards the general procedure followed in his office, he says that he deals with the papers relating to the entire office, though there is a separate section relating to elections in the said office, which was opened in the year 1956.

The procedure is that an application is presented to the Deputy Collector if he is at the station; otherwise the application is submitted to him. On receipt of the application, it is entered in the inward register. Copying charges deposited in connection with the certified copies are entered in a register. The application for & certified copy is numbered in the inward register and the application is sent to the concerned section. The signature of the appellant is taken under an endorsement to the effect that the copy has been received. The seal of the Deputy Collector''s office is put on the document.

The said procedure has been followed in the present case. It is, therefore, clear from his evidence that an application for a certified copy was presented to the Deputy Collector who it: also the Electoral Registration Office The Deputy Collector directed the peshkar (sic) issue the copy and after complying with the prescribed formalities, it was issued to Venkateshwar Rao with the seal of the Deputy Collector''s Office.

P. W. 4 is also one of the candidate of the Legislature from the Buggaram Constituency. He says that certified copies issued by the office of the Deputy Collector are signed by the Peshkar and the correctness of the copy is certified by the Record Keeper. The copy, therefore, is certainly an authenticate copy purported to have been issued by the Deputy Collector''s Office and duly certified by the Record Keeper. It is not even suggested that the entries in the copy are not in acc(sic) with the entries in the original electoral roll. On the aforesaid facts, the question is whether the copy produced is a certified copy with the meaning of S. 33 (5) of the Act.

The Act or the rules framed thereunder do not define what a certified copy is. A certified copy is an authenticated copy and a certificate issued by an officer is only a written declaration of the fact that the copy is a true copy of the original. A certificate is required to ensure that the copy is in accord with the original. Under Rule 31 of the Representation of the People (Preparation of Electoral Roll Rules, 1956, after the electoral roll for a constituency has been finally published, one complete copy of the electoral roll shall be kept in the office of the electoral registration officer There is no separate office of the Electoral Registration Office for the Mydaram constituency.

The Deputy Collector of Peddapalli, (sic) was appointed Electoral Registration Officer (sic) that constituency, exercised his duties to (sic) same office. It may, therefore, be held (sic) the office of the Deputy Collector of Peddapalli is the office of the Electoral Registration office of Mydaram constituency. The electoral roll of the Mydaram constituency was, therefore, in the office of the Deputy Collector. The copy was issued in accordance with (sic) practice obtaining in that office. The pra(sic) obtaining in the revenue office in the m(sic) of issuing certified copies is described in (sic) graphs 133 of the Manual of Revenue Law (sic) Nawab Aziz Jung thus:

The copy will be prepared after (sic) charges are deposited and after its compa(sic) it will bear the certificate of the Record Ke(sic) it will be signed by the office Superintendent or Assistant and will bear the seal of the (sic) and it will be endorsed that the copy has (sic) given on the application of a particular pe(sic) Further, on the reverse of the copy, the following will be endorsed:

From No. 42

Endorsement On copy prepared.

(1)

(2)

(3)

(4)

(5)

(6)

(sic)ate of the order of which copy is applied for.

Date of notice to the applicant of the order.

Date of application

Date when the copy was ready.

Date of delivery of the copy

No. of words

Column 7 amount or charges, and Column 8 Certification of the Record Keeper "

The practice in the Revenue Office is (sic)at a copy of the document is issued under the (sic)rections of the Deputy Collector and with the certificate of the Record Keeper. The practice containing in this Deputy Collector''s office as disposed by the evidence & the manner in which the certificate in question was issued is in accord with the aforesaid practice recorded in the manual.

(sic) can, therefore, reasonably be held that the copy issued in the present case is a certified or authenticated copy of the relevant en(sic)es in the electoral roll in the custody of the price of the Electoral Registration Officer of (sic)daram" Constituency. That would be the (sic)sition unless the word "certified copy" in S. (sic) (5) is used in a technical sense requiring (sic)pliance with certain specified conditions.

It is said that a certified copy under 33 (5) of the Act should comply with the conditions laid down in S. 76 of the Evidence (sic) A certified copy is not defined under the (sic) The Act does not state that the conditions laid down for certified copy in S. 76 of the Evidence Act should be complied with in the case (sic) certified copy to be filed before the Returning Officer. Nor does it lay down that the pro(sic)ons of the Evidence Act shall apply to an enquiry before the Returning Officer.

In the case of proceedings before the Tribunal, S. 90 (2) states that the provisions of the Indian Evidence Act shall, subject to the divisions of this Act, be deemed to apply in (sic) respects to the trial of an election petition. (sic) provision implies that in other cases the Hence Act has no application. If so there (sic) reason or scope for attaching the attributes (sic) certified copy under S. 76 of the Evidence (sic)to that under S. 33 (5).

The question now raised arose in (sic)rent forms before the election tribunals. In (sic) Naresh Singh v. Hukum Singh, 2 El L R (sic)(A), a copy was supplied to the candidate (sic) he application made by him to the Deputy Commissioner, who is also the District Elec- (sic) Officer and signed by the Head Copyist(sic)e Deputy Commissioner''s Office and certified to be a true copy by him, bearing the (sic)p of the Collector. The Tribunal held by the copy filed was a certified copy with-(sic)e meaning of S. 33 (5) of the Act.

A copy of the electoral roll issued by the Head copyist of the Collector''s office is (sic) to be certified copy within the meaning of (sic)et in Kanauji Lai Shukla v. Bhagwan Din, LRI (B).

So too, in Hari Vishnu Kamath v. (sic) Ahmed 5 El L R 248 (C). a copy of an (sic)in the electoral roll bearing the seal of the office of the Deputy. Commissioner, who is also the Election Registration Officer and signed as a true copy by the Head Copyist of the Deputy Commissioner''s office is held to be a certified copy within the meaning of the Act.

The decision in Appleton v. Lord Braybrook, 105 E R 1155 (D) on which strong reliance is placed by the learned counsel for the appellant, is not of much relevance for two copies of the judgment of the Supreme Court of Jamaica were sought to be admitted in a civil proceeding and the learned Judges held that, as the copies were neither under the seal of the Court nor did they proceed from a person specially entrusted to deliver them, they were not admissible in evidence. At page 1156, Lord Ellenborough says.

To this I answer, that if there be no seat of the Court or island, an examined copy must be obtained, although copies such as these may perhaps serve well enough throughout the island. There being no instance where such evidence was ever acted upon in the Courts of this country, I think it would be extremely dangerous if we were upon the present occasion to relax the rule.

In Ramanatha Iyer''s Law Lexicon, the following meaning is given to the word "certified copy."

"Officially declared or informed."

It has also been stated therein that in the absence of a statutory provision prescribing any particular form of certification, any form which affirms the fact in writing is sufficient. We hold that a copy of the relevant entries in the electoral roll filed before the Returning Officer was a certified copy within the meaning of S. 33 (5) of the Act.

In the aforesaid view, the other questions raised by the learned counsel for the appellant might not arise for consideration. But, as we have heard arguments, we would do well to express our opinion thereon. The argument is that, in the case of a candidate who is an elector of a different constituency, a duty is cast upon the Returning Officer to satisfy himself that the candidates name is on the electoral roll of the other constituency only on the basis of a certified copy of the relevant entries in such roll, that the non production of the certified copy is a substantial defect in the filing of the nomination paper and that, therefore, he has no option but to reject the nomination paper under S. 36 (2) of the Act.

This argument presupposes that the certified copy filed under S. 33 (5) should conform to the provisions of S. 76 of the Evidence Act We have already held that a certified copy under S. 33 (5) of the Act is not governed by the provisions of S. 76 of the Evidence Act. But we shall proceed to consider the argument on the basis that the provisions of S. 76 of the Evidence Act would govern the issue of a certified copy required under S. 33 of the Act. Section 76 reads:

Every public officer having the custody of a public document which any person has a light to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of & seal, and such copies so certified shall be called certified copies.

EXPLANATION: Any Officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.

Under this section, a certified copy is a copy certified as true and signed by the officer, who has custody of the original. It shall also bear the seal of the officer whenever he is authorised to make use of a seal. Under the explanation, an officer, who is authorised in the ordinary course of official duties to deliver such copies, is deemed to be in custody of such document.

The argument is that a Deputy Collector as distinguished from the Electoral Registration Officer is not in custody of the electoral roll, that he did not certify at the foot of the copy that it is a true copy, that the peshkar was not authorised by the ordinary course of official duty to deliver copy and that even if he was so authorised, the Record Keeper certified it to he a true copy but not the peshkar and, therefore none of the conditions laid down in S. 76 was complied with. This argument is based upon a technicality to a breaking point but, if there is substance, the argument will have to be sustained. We shall consider this argument from different perspectives:

The Deputy Collector is in the custody of the electoral roll.

The peshkar has not been authorised by the ordinary course of official duty to deliver copies.

He did not certify that the copy was a true copy.

The record keeper certified it.

It is true that the copy was purported to have been issued from the office of the Deputy Collector and not from the office of the Electoral Registration Officer. We have already pointed out that the Deputy Collector was appointed as the Electoral Registration Officer and that the Deputy Collector in his capacity as Electoral Registration Officer functioned only through the same office.

It can, therefore, be said, without doing any violence to the provisions of the section that the Deputy Collector was in the custody of a public document in his capacity as Electoral Registration Officer. But the difficulty that he did not certify at the foot of the cop that it was a true copy of the document. Therefore, if the Electoral Registration Officer was in custody of the document, the copy issued did not comply with the conditions or S. 7. But the evidence discloses that the peshkar was authorised by the Deputy Collector to deliver certified copies.

But it is said that he was only specifically authorised to issue but he was re-authorised to issue copies by the ordinary course of official duty. We cannot give the restricted meaning sought to be given by the learned counsel for the appellant to the clause "by the ordinary course of official duty is authorised. It means nothing more than that it is in (sic) charge of his official duties. When a subordinate Officer is authorised by a superior officer to issue a copy on an application made in t(sic) behalf, we do not find any difficulty in holding that a copy was issued by an officer w(sic) by the ordinary course of official duty, (sic) authorised to give such copies.

Even so, there is another obstacle in way of the respondent for the peshkar, we must be deemed to be in custody of the document, has not certified that the copy is a true copy of the document. Then, remains (sic) question whether the Record Keeper (sic) be deemed to be a person who is authorised deliver copies in the ordinary course of official duty. The Revenue Manual records the practice that the Record Keeper should certify (sic) the document is a true copy after comparin(sic) with the original. Ex P-2, the certified (sic) issued in the present case presumably purs(sic) to the practice obtaining in revenue officer certified to be a true copy by the Re(sic) Keeper.

The peshkar only signed the endorser(sic) to the effect that the copy applied for is granted. Relying upon the provisions of S. 11 of the Evidence Act, we should have had (sic) difficulty in holding that the Record Ke (sic) was by ordinary course of official duty at (sic)rised to deliver certified copies. But it is (sic) that F. W. 2 says in his evidence that (sic) Deputy Collector ordered him to issue a certified copy as prayed for in the application (sic)if so, the Record Keeper has no power to (sic) a certified copy. The evidence of P. W. (sic) (sic)lates to a specific order issued by the Deputy Collector in connection with the application filed by Venkateshwar Rao and has nothing to do with the authorisation given to the R(sic) Keeper by the ordinary course of official.

That apart, the evidence of the pe(sic) shows that an application could ordinarily presented to the Deputy Collector and, i(sic) absence, to the peshkar and the Deputy Collector or in his absence the peshkar necessary will have to make an order on the application to issue a certified copy. The order o(sic) Deputy Collector mentioned by the peshkar his evidence directed the peshkar to issue certified copy in his absence..But the R(sic) Keeper was the person authorised by ordinary course of official duty to deliver copies to the applicants.

An authorisation to issue a certified copy is prayed for in the application is different from the authorisation to deliver the copies. One is to order delivery on an application presented to the peshkar and the other is to deliver the copies pursuant to the provisions of S. 76 (sic) the Evidence Act. We would, therefore, told that the Record Keeper was authorised by the ordinary course of official duty to deliver certified copies within the meaning of the explanation to S. 76, and, therefore, he was a Public officer having custody of the electoral roll. In this view, the copy delivered by him duly certified as true copy was in accordance with the provisions of S. 76 of the Act.

Even if we are wrong in this view, (sic)e position is that the peshkar who was authorised to issue a certified copy directed its issue (sic)d presumably pursuant to his directions, the record Keeper, another officer pursuant to the practice obtaining in the office, compared the copy with the original, certified it to be a true copy by subscribing to it, affixed the seal of the Deputy Collector and delivered it to the applicant. As a matter of fact, the copy given is a copy of the original. It is in evidence that (sic)lapalli circle in which Peddapalli is situated (sic)s transferred from the Buggaram Assembly constituency to Mydaram Constituency only on (sic)-1957.

The notification holding elections to the Buggaram Assembly constituency was issued on 19-1-1957. In the circumstances, though in (sic) that portion of the electoral roll or the Buggaram Assembly constituency must be (sic)med to have been deleted from the electoral roll of the Buggaram Assembly constituency, in fact that part of the roll also should have been with the Returning Officer at the (sic)e the nomination paper of Venkateshwar (sic) was filed and, therefore, it was available (sic)him for verification.

Neither Venkateshwar Rao nor any other (sic)son interested in the election objected to (sic) copy of the ground that it was not a true copy of the original. At the time of the pre-(sic)ation, the Returning Officer did not reject(sic)ut he took the objection suo motu at the (sic) of the scrutiny and rejected it. On the aforesaid facts, can it be said that the defect (sic) the nomination paper is of a substantial cha-(sic)er entitling the Returning Officer to reject

Learned counsel contends that the (sic)urning Officer should satisfy himself that (sic)candidate''s name is as entered in the nomination paper on the basis of a certified copy of (sic) relevant entries in the roll of the different constituency wherein the candidate is an elec(sic) and the non-production of such a certified (sic) is a defect of a substantial character, for (sic) satisfaction depends upon such certified (sic) We have already held that the copy (sic)uced is a certified copy within the meaning of S. 33 (5) of the Act and also of S. 76 of the Evidence Act.

That would be sufficient to reject this argument. But we should proceed to consider the argument on the basis that the peshkar was authorised to deliver certified copies but the Record Keeper pursuant to the practice prevailing in the office prepared the copy, compared it with the original and delivered it to the applicant under the directions of the peshkar.

Some of the decisions cited at the Bar bearing on the interpretation of the words "defect which is not of a substantial character" in sub-s. (4) of S. 36 may now be considered. The Supreme Court in Rattan Anmol Singh and Another Vs. Atma Ram and Others, discussed the scope of the provisions of S. 36 (4) in some detail. As much of the argument of the learned counsel for the appellant turns upon the scope of that decision, it is necessary to notice that decision in some detail. There the contest was for two seats in the Punjab Legislative Assembly. The nomination of one of the candidates Atma Ram was rejected by the Returning Officer. He filed a petition for setting aside the election of the successful candidates. The ground of rejection was that the proposer and the seconder who were illiterate placed their thumb marks but they were not attested. Section 33 (1) of the Act required 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-s. (2) as proposer and seconder.

Sub-section (2) of the said Act said that any person whose name is registered, etc., may subscribe as proposer or seconder to as many nomination papers as there are vacancies to be filled. Rule 2 (2) of the Representation of People (Conduct of Elections and Election Petitions) Rules, 1951, runs as follows:

For the purposes of this 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 papers 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."

On a construction of the aforesaid provisions, the Supreme Court held that the attestation in the prescribed manner was required in the case of proposers and seconders who are not able to write their names and, as there was no attestation in the manner prescribed, there was no valid signature of either the proposer or the seconder in any of the nomination papers, and therefore the Returning Officer was bound to reject them under S. 36 (2) (a) of the Act because of their failure to comply with S. 33.

Then their Lordships considered the question whether the defect in the nomination was a technical defect, which was not of a substantial character within the meaning of S. 36 (4) of the Act. In the context of the said question, the Supreme Court made the following observations:

The question therefore is whether attestation is a more 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 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 ''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 absence could not be dismissed as technical and unsubstantial. The ''satisfaction'' of the Returning Officer which the Rules require is not, in our opinion, anytheless important and imperative.

These observations indicate that the substance of the matter is the satisfaction of the Returning Officer at the proper time of the identity of the person making the mark in the place of writing his signature and his non-satisfaction of the identity at the proper time was not a technical defect. The rule was made obviously in view of the appalling illiteracy prevailing in the country and to prevent impersonation. A duty, therefore, was cast upon the Returning Officer to satisfy himself that the proposer and the seconder placed their mark on the nomination paper.

The question of valid proposal and seconding of a nomination by person duly qualified goes to the root of the matter and a defect in not strictly conforming to the said requirement was held to be one of a substantial character. But the same cannot be said of the production of a certified copy, which has been, as a matter of fact, certified by an officer as a copy of the original pursuant to the practice obtaining in the office or to the directions given to him by the officer who was authorised to issue certified copies. Section 33 (5) enjoins on a candidate to file a certificate copy of the relevant entries in the roll of (sic) different constituency of which he is an ele(sic)tor at the time of the scrutiny unless he has filed one along with the nomination paper.

Sub-section (7) of S. 36 says that a certified copy of an entry in the electoral roll for the time being in force of a constituency should be conclusive evidence of the fact that (sic) person referred to in that entry is an electoral for that constituency. Neither S. 33 (5) n(sic) S. 36 (7) precludes proof by other means of (sic) fact that the name of the candidate is on t (sic) relevant electoral roll. An authenticated co emanating from the office of the electoral Registration Officer issued by a responsible subordinate officer of that office could certainly afford a basis for the satisfaction of the Returning Officer that the candidate''s name (sic) on the electoral roll, though that copy may (sic) be conclusive proof of that fact as in the c(sic) of a certified copy.

While the non-satisfaction by the Returning Officer of the identity of the proposer (sic) the seconder, who placed their marks on (sic) nomination paper, goes to the root of the matter, the production of an authenticated copy of the place of a certified copy as defined in S. 76 of the Evidence Act is not a defect of the substantial character which entails the reject (sic) of the nomination paper.

The Supreme Court in a later decision in Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, , explained their Previous judgment and made some pertinent preservations for the guidance of Returning Officers. In that case, the candidate''s occupa(sic) was not disclosed in the nomination paper. The Lordships held that the omission did not af(sic) the merits of the case and did not go to (sic)root of the matter. In that context, the following observations are made :

We do not think that is right and (sic) deprecate the tendency towards technicality (sic) is the substance that counts and must take (sic)cedence over mere form. Some rules are (sic) and go to the root of the matter; they cannot be broken; others are only directory an (sic) breach of them can be overlooked prov(sic) there is substantial compliance with the (sic) read as whole and provided no prejudice (sic) sues; and when the legislature does not (sic)state which is which judges must determine (sic) matter and, exercising a nice discrimination (sic) sort out one class from the other along br(sic) based commonsense lines.

Looked at from the broad-b(sic) common-sense lines can it be said that (sic) production of an authenticated copy in (sic) circumstances of the case, where as a matter (sic) fact no objection was raised by inter(sic) parties, was a defect of a substantial nat(sic) We think that the defect did not go to the (sic) of the matter and the Returning Officer (sic) not precluded from relying upon an autt(sic)cated copy though somewhat defective in(sic) matter of its preparation.

The judgment of a Division Bench of (sic) Madras High Court in Muthuraman Chettiar Vs. Adaikappa Chetty and Others, is also (sic) died upon in support of the appellant''s con(sic)ation. There, the learned Judges held that (sic) omission to give the particulars as to the (sic) electoral roll and the serial number therein the nomination form is not a mere technical de(sic)ft but is a substantial one which the Returning Officer has no jurisdiction to overlook and (sic)at such omission is a good ground for the (sic)ection of a nomination paper by the Returning Officer under S. 26 (2) (d) of the Act. It is not necessary in this case to consider whether the defect pointed out by the learned judge was a substantial one as to entail rejec-(sic) of the nomination paper. Each case depends upon the facts of that (sic)e. We therefore, hold that the production (sic)an authenticated copy of the electoral roll (sic)ng with the nomination paper not in strict (sic)plianee with the provisions of S. 76 of the (sic)dence Act was not a defect of a substan-(sic)nature within the meaning of S. 36 (4) of (sic) Act, and, therefore, the Returning Officer (sic)d in rejecting the same.

In the result, we agree with the conclusion of the Tribunal and dismiss the appeal with costs. Advocates fee Rs. 100/-.