CHAUHAN RAJENDRASINHJI TAKHATSINHJI v. STATE — 1977 DIGILAW 127 (GUJ)

S. H. SHETH, J. ( 1 ) THE question which arises in these three petitions is identical. The facts of the case in Special Civil Application No. 11 of 1976 briefly stated are as follows. The petitioner was a voter at the elections to Wav Taluka Panchayat in Banaskantha District. Respondents Nos. 3 and 4 were candidates. Nomination paper of respondent 3 was challenged at the time of the scrutiny on the ground that his proposer Vanol Kala Vaja was illiterate and had affixed his thumb impression which was not attested by the Returning Officer though it was identified by some other witness. This objection was raised by respondent 4. The Returning Officer rejected the objection and upheld the validity of the nomination paper. It is that order which is challenged in this petition. ( 2 ) THE facts of the case in Special Civil Application No 13 of 1976 briefly stated are as follows. Respondents 3 and 4 were candidates at the elections to Wav Taluka Panchayat. The nomination paper of Laxmiben Muljibhai respondent No. 3 was challenged by respondent No. 4 at the time of scrutiny on the ground that her proposer Mehaji Valabhai who was illiterate had affixed his thumb impression which was not attested by the Returning Officer though it was identified by another witness. This objection was rejected and validity of the nomination paper was upheld. It is that order which is challenged by the petitioner in this petition. ( 3 ) THE facts of the case in Special Civil Application No. 14 of 1976 briefly stated are as under: Respondents 3 and 4 were candidates at elections to Wav Taluka Panchayat. The nomination of respondent No. 3 Vaghela Somji Hathising was challenged on the ground that the thumb impression of the candidate himself who was illiterate was not attested by the Returning Officer though it was identified by another witness. This objection was raised by respondent No. 4. It was rejected by the Returning Officer who upheld the validity of nomination paper of respondent No. 3 It is that order which is challenged by the petitioner in this petition. ( 4 ) I may state that these three petitions have been filed by the same petitioner. This objection was raised by respondent No. 4. It was rejected by the Returning Officer who upheld the validity of nomination paper of respondent No. 3 It is that order which is challenged by the petitioner in this petition. ( 4 ) I may state that these three petitions have been filed by the same petitioner. The common question which arises in all these petitions is whether the three nomination papers were invalid because the thumb impressions thereon were not attested by the Returning Officer. The requirement of attestation is laid down in Rule 2 (2) (b) of the Gujarat Taluka and District Panchayats Election Rules 1975 It provides as under: (2) For the purpose of 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 (a) 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 has been entrusted any work in connection with the election and (b) Such officer on being satisfied as to his identity has attested the mark as being the mark of that person. It is common ground that none of the thumb impressions on three nomination papers in question bears the attestation by the Returning Officer. Mr. M. M. Shah who appears on behalf of the petitioner has contended that the requirement of the rule is mandatory and that therefore the acceptance of the three nomination papers by the Returning Officer was not valid. He has in support of his contention relied upon the decision of the Supreme Court in Ram Dayal v. Brijraj Singh and Others A. I. R. 1970 S. C. 110. He has in support of his contention relied upon the decision of the Supreme Court in Ram Dayal v. Brijraj Singh and Others A. I. R. 1970 S. C. 110. In that case the Supreme Court was dealing with sec 2 (1) of the Representation of the People Act 1951 and Rule 2 (2) of the Conduct of Elections Rules 1961 Rule 2 12) of the Conduct of Elections Rules 1961 is pari material with Rule 2 (2) of the Gujarat Taluka and District Panchayats Election Rules Rule 2 (2) of the Conduct of Elections Rules 1961 may be reproduced for the purpose of comparison: (2) For the purpose of the Act or these rules a person who is unable to write his names shall unless otherwise expressly provided in these rules be deemed to have signed an instrument or other paper if (a) 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 (b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person. The two rules which I have reproduced make it clear beyond all doubts that they are exactly identical in their expressions. Interpreting Rule 2 (2) of the Conduct of Elections Rules 1961 the Supreme Court in Ram Dayals case (supra) has observed that where a person is unable to write his name he may place his mark on the instrument or other paper that the requirements of law are complied with provided he puts the mark in the presence of the Returning Officer or the Presiding Officer or such other officer as may be specified in that behalf by the Election Commission and that such officer on being satisfied as to his identity attests the mark as being the mark of that person. Adverting to the attestation the Supreme Court has observed that it is not a mere technical or unsubstantial requirement which can be dispensed with. Adverting to the attestation the Supreme Court has observed that it is not a mere technical or unsubstantial requirement which can be dispensed with. According to the Supreme Court it is a matter of substance because the attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been. In taking this view the Supreme Court his relied upon its own earlier decision in Rattan Anmol Singh v. Ch. Atma Ram A. I. R. 1954 S. C. 510. They have further observed that omission or failure to attest a nomination paper as required by law on the date of filing nomination paper could not be made good or rectified at the time of scrutiny. The next decision on which reliance has been placed by Mr. M. M. Shall is in Dharam Singh Rathi v. Hari Singh M. L. A. and Others (1975) 2 Supreme Court Cases 240. It was also a case under the Conduct of Elections Rules 1961 made under the Representation of the People Act 1951 It has been observed in that decision that the thumb mark has to be placed by the proposer on the nomination paper in the presence of the Returning Officer and that such officer on being satisfied as to his identity has to attest the mark as being the mark of that person. Since authentication in that case was not done in the prescribed manner it was a clear violation of Rule 2 (2) of the Conduct of Elections Rules 1961 The Supreme Court therefore upheld the rejection of nomination paper in that case. If these were the only decisions bearing on the subject in all probability the argument advanced by Mr. M. M. Shah would have been upheld. However Mr. M. B. Shah who appears on behalf of the State of Gujarat and the Mamlatdar of Wav has invited my attention to an earlier decision of the Supreme Court in Rattan Anmol Singhs case (supra ). M. M. Shah would have been upheld. However Mr. M. B. Shah who appears on behalf of the State of Gujarat and the Mamlatdar of Wav has invited my attention to an earlier decision of the Supreme Court in Rattan Anmol Singhs case (supra ). I may repeat that this decision has been followed by the Supreme Court in Ram Dayals case (supra) interpreting the requirement of attestation the Supreme Court has observed in Rattan Anmol Singhs case (supra) that when the law requires the satisfaction of a particular officer at a particular time his satisfaction cannot be dispensed with altogether. Such a provision is as necessary and as substantial as attestation in the case of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. However in paragraph 15 of the report it has been observed that in that case no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of the persons concerned but evidence was led to show that it was attempted at the scrutiny stage. It has been further observed that if the identity could have been proved to the satisfaction of the Returning Officer at the time of the scrutiny it would have been too late because the attestation and the satisfaction must exist at the presentation stage and that 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. Mr. M. B. Shah has emphasised the expression no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons and argued that if there is evidence to show that the identity of the maker of the mark was established before the Returning Officer at the presentation stage then such a nomination paper cannot be held to be invalid for want of attestation though in the latter decision the Supreme Court has followed its earlier decision. The difference in principle which Mr. The difference in principle which Mr. M. B. Shah has pointed out is that whereas the Supreme Court in Rattan Anmol Singhs case was inclined to take the view that if there is evidence at the time of the scrutiny to show that the identity of the maker of the mark was established before the Returning Officer at the presentation stage and if this evidence is accepted then nomination paper for want of attestation in the prescribed manner cannot be held to be invalid. In the subsequent decision no such question arose. The manner in which the Supreme Court has expressed itself in paragraph 15 of the report in Rattan Anmol Singhs case is indeed negative and indirect. However taking into account the fact that in all the decisions referred to above the Supreme Court has consistently laid down that the establishment of the identity of the maker of the mark to the satisfaction of the Returning Officer at the presentation stage is a matter of substance and not a mere technicality or a form it can be unhesitatingly laid down that if the record of the case shows that even though the Returning Officer did not attest the mark at the time of the presentation stage if the identity of the maker of the mark was then satisfactorily established before him then the requirement of law in substance is complied with. In all the three cases while rejecting the objection to the validity of the nomination paper the Returning Officer made an identical order. He has ill terms stated in his order dated 19th November 1975 that he had received the nomination paper on 17th November 1975 and that the thumb mark in question was placed before him. He has also recorded in his order that he had asked the identifying witness to write his name below the thumb impression in question and that it was attested He has next observed that on account of heavy influx of nomination papers though he had intended to attest the thumb marks in question they had remained to be attested. According to him therefore there was no fault on the part of the candidate who had affixed the thumb mark in his presence and under his orders. According to him therefore there was no fault on the part of the candidate who had affixed the thumb mark in his presence and under his orders. ( 5 ) THE identical orders made by the Returning Officer on all the three nomination papers constitute a clinching evidence to show that the Returning Officer was satisfied by the identity of the makers of the mark at the time when the nomination papers were presented to him. In my opinion therefore the substance of the legal requirement was satisfied. ( 6 ) MR. M. B. Shah has next pointed out to me sub-sec. (2a) of sec. 24 of the Gujarat Panchayats Act 1961 under which the elections to Wav Taluka Panchayat were held. . It provides as under: (2a) 11 the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under sec. 323 or of an irregularity or informality not corruptly caused the Judge shall not set aside the election. EXPLANATION. The expression error in this sub-section does not include any breach of or any omission to carry out or any non-compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has been materially affected. THIS sub-section is indeed intended to govern the election petitions filed under sec. 24 of the Gujarat Panchayats Act 1961 In my opinion though it would not proprio vigore govern writ petition under Art. 226 it can certainly be accepted as a guideline because the direction given therein is a creature of the same statute of which the present elections are the creature. It in terms provides that a mere non-compliance with a rule made under sec. 323 shall not be sufficient to call the validity of an election in question unless it was corruptly caused or unless the result of the election was materially affected. In these three petitions there are no allegations in regard to corruption or material effect of this defect on the elections. No identical provision in the Representation of the People Act 1951 under which the Conduct of Elections Rules 1961 have been made has been pointed out to me. However sub-clause (iv) of clause (d) of sub-sec. (1) of sec 100 of the Representation of the People Act 1951 may be referred to. No identical provision in the Representation of the People Act 1951 under which the Conduct of Elections Rules 1961 have been made has been pointed out to me. However sub-clause (iv) of clause (d) of sub-sec. (1) of sec 100 of the Representation of the People Act 1951 may be referred to. It provides:100 (1) Subject to the provisions of sub-sec. (2) if the High Court is of opinion (d) that the result of the election in so far as it concerns a returned candidate has been materially affected. (i ). . . . . . . . . (ii ). . . . . . . . . (iii ). . . . . . . . . (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void. ( 7 ) THE direction given by sub-clause (iv) is different in character from one given by sub-sec. (2a) of sec 24 of the Gujarat Panchayats Act. Firstly whereas the direction given by sub-clause (iv) is the positive and affirmative direction given by sub-sec. (2a) of sec. 24 of the Gujarat Panchayats Act is negative and preventive. Secondly the amplitude of sub- sec. (2a) Of sec. 24 of the Gujarat Panchayats Act appears to me to be wider than that of sub-clause (iv) of clause (d) of sub-sec. (1) of sec. 100. Therefore in my opinion Rule 2 (2) of the Gujarat Taluka and District Panchayats Election Rules cannot be interpreted in the manner in which Rule 2 (2) of the Conduct of Election Rules 1961 has been interpreted by the Supreme Court. The interpretation and application of Rule 2 of the Gujarat Taluka and District Panchayats Election Rules 1975 must bear the reflection of sub-sec. (2a) of sec. 24 of the Gujarat Panchayats Act. On account of these two reasons I am unable to uphold the contention which Mr. M. M. Shah has raised on behalf of the petitioners. [rest of the judgment is not material for the reports. ] .