1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to quash the proceedings and order of the Election Tribunal, Coimbatore, in Election Petition No. 1 of 1952 on the file of that Tribunal declaring the election of the petitioner to the Madras Legislative Assembly from the Kangayam General Constituency void. The petitioner and the first respondent were the two candidates for election to the Madras Legislative Assembly from the Kangayam General Constituency. The respondent filed two nomination papers on 20-11-1951. Both the nomination papers were rejected by the Returning Officer on scrutiny made by him on 28-11-1951 on the ground that the respondent had not filed a declaration relating to the appointment of his election agent. The petitioner was therefore declared elected as he was the only duly nominated candidate for the seat. The respondent thereupon filed an election petition under Section 81, Representation of the People Act, 1951. The Election Tribunal held that the rejection of the nomination of the respondent was wrong and declared the election of the petitioner void.
2. The following provisions of the Representation of People Act, 1951 and the rules framed thereunder are material for the disposal of this application. Section 33, Sub-section (3) is as follows: 'Every nomination paper delivered under Sub-section (1) shall be accompanied by a declaration in writing subscribed by the candidate that, the candidate has appointed as his election agent for the election either himself or another person who is not disqualified under this Act for the appointment and who shall be named in the declaration, and by such other declarations, if any, as may be prescribed; and no candidate shall be deemed to be duly nominated unless such declaration is, or all such declarations are, delivered along with the nomination paper.' (The provisos to the subsection are not material).
3. Section 36, Sub-section (2) in so far as it is relevant runs thus:
'The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds:
(d) that there has been any failure to comply with any of the provisions of Section 33 or Section 34.' Sub-section (4) of this section says that the Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. Section 40 provides for the appointment of an election agent by a candidate at an election. He may appoint himself or some other person to be his election agent. The appointment has to be in writing. Rule 4 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, provides that every nomina-nation paper delivered under Sub-section (1) of Section 33 or under that sub-section read with Sub-section (4) of Section 39 shall be completed in the form specified in Schedule II.
Rule 5 requires that every nomination paper delivered under Sub-section (1) of Section 33 shall be accompanied by a declaration in writing specifying the particular symbol which the candidate has chosen for his first preference out of the list of symbols published by the Election Commission by notification in the Official Gazette. Rule 11-A prescribes Form 5-A for the appointment of an election agent under Section 40. The form of the nomination paper as given in Schedule II to these rules does not consist only of what may be strictly called the nomination paper under Section 33(1) of the Act, but also contains after the nomination portion forms of declaration by the candidate of the appointment of the election agent and the choice of symbols, and also in concerned cases formal declaration by the candidate who is a member of the scheduled caste or any scheduled Tribes.
4. What the respondent did was to fill up the nomination paper in every required particular and to subscribe it, so that it could not be said that there was no delivery of a validly filled up nomination paper under Sub-section (1) of Section 33. Ho filled up the name of the election agent whom he had appointed under Section 40 of the Act in the form prescribed under the rules, namely, Form 5-A. Indeed, he filed along with the nomination paper the document by which he had appointed his election agent. He however did not affix his signature at the place where in the printed form there is an indication for the signature to be filled up. He also filled up the particulars of the choice of his election symbol. He then affixed his signature at a place which according to the form is intended to relate to the declaration of the choice of symbols but which actually happens to be the last line on the sheet.
5. The question is whether there has been a failure to comply with the provisions of Section 33, Sub-section (3) of the Act inasmuch as the declaration that the candidate had appointed a particular person as his election agent had not been subscribed by the candidate. The other question is whether, even assuming that there has been a failure in this behalf, it could be said that there was only a technical defect not of a substantial character which could not justify the rejection of the nomination paper by the Returning Officer. The Election Tribunal has held in favour of the respondent on both the points and we are in agreement with the conclusions of the Election Tribunal.
6. There was another contention on behalf of the respondent, namely, that because the nomination-paper was accompanied by the document by which the candidate had appointed the agent in Form 5-A duly signed, that must be deemed to be a sufficient compliance of the requirements of Section 33, Sub-section (3). We think that this contention is not tenable. Section 40 provides for the appointment of an election agent. The language of the form shows that the election agent is being appointed at the time of the execution of that document. Section 33, Sub-section (3) requires a declaration that the candidate has already appointed himself or some other person as his election agent.
7. In our opinion, the subscription by the candidate at the end of the sheet after the declaration in respect of the election symbols must be held to relate not only to the declaration as to the symbols but also to the declaration which occurs before, which relates to the appointment of the agent. No doubt, in the printed form, there are two places indicated at which the candidate is expected to subscribe, one immediately following the declaration as to the appointment of election agent and another immediately after the declaration as to the choice of symbols. But what is contained in the print which really indicates where the candidate is expected to sign can be disregarded and the substance of what the candidate has done can be taken into account in determining whether or not he has complied with the requirements of Sub-section (3) of Section 33 as well as the requirements of rule 5 of the Election rules. We see nothing either in the Act or in the Rules or any principle of law which prevents the candidate from making both the declarations one after the other and affixing his signature at the end of the several declarations. In other words there is nothing in the Act or in the Rules which makes it incumbent on the candidate to subscribe after each declaration. We hold that in effect there has been a subscription by the respondent to the declaration as to the appointment of the election agent.
Mr. Rajah Aiyar for the petitioner relied on the decision in -- 'Caton v. Caton', (1865) 2 H. L 127 (A) and in particular the observations of Lord Westbury at p. 143 for the general proposition that the signature of a party should be so placed in a document as to govern every material and operative part of the instrument. In that case which related to a claim for specific performance of a contract relating to a marriage settlement, the name of the party against whom specific performance was sought appeared in different parts of the paper on which the contract was reduced to writing but only in such, a way that the signature referred to the particular part Where it was found and there was no signature which could be said to relate to the instrument as a whole. It was held that specific performance could not be granted as there was no contract within the meaning of the statute of Frauds. The following observations from the speech of Lord Westbury are instructive:
'........The signature must be so placed as to shew that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument.......... It must shew that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows, therefore, that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum.'
It was actually found in that case that the signature of the party, though it occurred four times, occurred only in relation to particular portions of the instrument. We fail to see how the principle of this ruling applies to the present case. We have already held on a perusal of the nomination paper filed by the respondent that there were in effect two declarations, namely, a declaration as to the appointment of an election' agent and a declaration as to the choice of symbols both of them having one signature of the candidate.
8. Even assuming that there was non-compliance with the provisions of Section 33, Sub-section (3) to this extent, we think that it was a technical defect which was not of a substantial character and it was not a ground on which the Returning Officer is entitled to reject the nomination paper. We think that it is not a defect of a subsantial character because the name of the election agent had been filled up and the appointment paper in accordance with Form 5-A which had been duly signed by the candidate was filed along with the nomination paper. There could be no doubt as to the fact that the candidate had appointed a particular person as his election agent and It was duly authenticated both by his signature on the nomination paper and by his signature in Form 5-A.
9. We therefore agree with the Election Tribunal that the nomination papers of the respondent were wrongly rejected. This application fails and is dismissed with costs of the first respondent. Advocate's fee Rs. 150.