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PETITIONER: KANHAIYALAL VISHINDAS GIDWANI

       Vs.

RESPONDENT: ARUN DATTATRAY MEHTA & ORS.

DATE OF JUDGMENT:       16/11/2000

BENCH: S.N.Hegde

JUDGMENT:

SANTOSH HEGDE, J.

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     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 abovenamed  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.

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

     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.

     Based on the pleadings in the petition, the High Court framed the following issues :-

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     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.

     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.1, came to the conclusion that  when the  proposers subscribed their signatures to the nomination form  of respondent No.1, it was blank.  However, it came to the further conclusion that since the said proposers had the knowledge  as  to who the candidate was to be and that  they had empowered the Party to propose such candidate by signing the  nomination  form  hence  it  held  that  there  was  no invalidity  attached  to  the   said  nomination.   It  also rejected  the argument of the petitioner that there was  any difference  in  the meaning of the two words  signed  and subscribed  in  the context in which they are used in  the Act.   In  this appeal, Mr.  R.F.  Nariman,  learned  senior counsel  appearing  for the appellant-petitioner,  contended that  the  High Court having rightly come to the  conclusion that  the nomination paper in question was a blank paper  at the  time  when  10 proposers signed the same, it  erred  in coming  to  the conclusion that the subsequent insertion  of the name of respondent No.1 would not vitiate the mandate of law.  He contended that after the 1996 Amendment to the Act, by  the  inclusion of the first proviso in Section  33,  the Legislature had intended that the persons proposing the name of a candidate who does not belong to a recognised political

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party,  had to do so consciously because the Act intended to eliminate  frivolous  candidature.   He   argued  that   the Legislature  by using the word subscribed in place of  the word signed with reference to a candidate not belonging to a  recognised  political  party,  statutorily  required  the proposer  to  do  something  more   than  merely  sign   the nomination  paper.   He  further argued that when  the  same Statute  uses  two different words, it should be  understood that the Legislature intended to use two different meanings. If  so interpreted, he argued, the word subscribe used  in the  amended proviso meant something different from the word signed  as found in the said Section with reference to the proposer of a recognised party candidate.  He also contended that  apart  from the legislative intent even  the  ordinary dictionary meaning would indicate that the word subscribed meant something different from the word signed.  Ascribing a  wider  meaning to the word subscribe, he contended,  in the  context of nominating a candidate would mean that there should  be  an  element  of   application  of  mind  by  the subscriber  which cannot be present if a nomination paper is being  signed  when it is blank.  He also contended that  it would  be fallacious to hold that the expression subscribe would  mean  nothing more than what the word  sign  means. Thus,  he  contended,  the High Court was not  justified  in coming  to the conclusion that respondent No.1s  nomination paper was valid even when it came to the conclusion that the same  was  signed  by the 10 proposers when it was  a  blank nomination paper.

     Mr.   G L Sanghi, learned senior counsel  representing the  first  respondent, questioned the finding of  the  High Court  in  regard to the fact that the nomination  paper  in question  was  blank when it was signed by the proposers  or that  the  proposers did not know that the nomination  paper was  meant  to be used by respondent No.  1.   He  contended that  the High Court erred in accepting the evidence of  the 10  proposers  on  its face value;  more so in view  of  the latter  finding  of  the High Court wherein it came  to  the conclusion that the 10 subscribers had signed the nomination paper knowing very well that the same would be used by their party  for proposing an independent candidate.  He  strongly urged  that it was not safe to rely on the evidence of  PWs. 3  and  6 to 14 when they stated that they had no  knowledge that  they  were proposing the name of respondent No.1,  and that  they  had signed the nomination paper only to  propose their  party  candidate.   He  also contended  that  in  the context  in  which  the  Legislature   has  used  the  words subscribe  and signed in Section 33, there is hardly any difference  between  the  two  and  both  the  words  merely intended  to  mean  that  the   proposer  had  to  sign  the nomination paper in the space provided therein.

     From  the above arguments of the learned counsel,  the following two points arise for our consideration :

     1.   Is  the  High Court justified in  coming  to  the conclusion  that  the  nomination  paper signed  by  the  10 proposers was blank ?  2.  Does the introduction of the word subscribed  in Section 33(1) impose any obligation on  the proposer  of a nomination paper of a candidate not belonging to  a  recognised political party to apply his  mind  before appending his signature to such nomination form ?

     We  will now consider the first point framed by us for consideration  in  this  appeal.    While  considering   the

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question  whether the nomination paper was blank when signed by  respondent  Nos.3  and  6 to 14,  the  evidence  of  the election  petitioner  as PW-1 becomes irrelevant because  he had  no  personal knowledge in regard to the signing of  the nomination  paper by the said proposers.  The proposers  who have actually signed the nomination paper have been examined in  this case as PW-3 and 6 to 14.  PW-3 is Raosaheb  Ramrao Patil.  He in his cross- examination stated that he signed a blank  nomination  form  in  the chamber of  the  Leader  of Opposition on 2.6.1998 which was given to him by the Private Secretary  to  the  Leader of Opposition  Mr.   Pichad.   He admits  that  respondent No.1 was a likely candidate in  the said  election.   He  also states that it  was  the  general practice  of  the  party  to   obtain  signatures  on  blank nomination  forms.   It  is seen from his evidence  that  on receipt  of  the  show  cause notices from  the  party  High Command, all the 10 proposers sat together and decided as to what explanation was to be given to the General Secretary of the AICC.  PW-6 - A.G.  Dhatrak - also states that he signed a  blank form as a proposer in the Chamber of the leader  of Opposition  which  was  obtained  by the  Secretary  to  Mr. Pichad.   He  also admits that respondent No.1 was a  likely candidate  in the said election.  He further admits that all the  10 MLAs who signed the nomination form sat together and prepared a reply to be sent to the party High Command.  PW-7 -   Shankarrao  Jagtap  -  is  a  5th  term  Member  of  the Legislative  Assembly  and  was  a  former  Speaker  of  the Legislative  Assembly.   He also stated that he  signed  the nomination  paper on or about 2.6.1998 in the Chamber of the leader  of  Opposition when the form was blank.   He  stated that in the said form his signature is found at serial No.2. When  he  signed  the said nomination paper,  Mr.   Raosaheb Ramrao  Patil (PW-3) and Dalip Walse Patil (PW-13) were also present.   According to him, many of the signatories  signed the  nomination paper in the presence of each other.  It  is seen  from  his  evidence that on reading in  the  newspaper about  the show cause notice issued by the AICC, all the  10 signatories  came to Delhi, received the show cause  notices and submitted their explanation.  PW-8 is Kisanrao Sampatrao Jadhav  whose  signature  is  found at serial  No.5  in  the nomination form.  He first stated that he signed the form on 3.6.1998  but later corrected himself to say that he  signed it  on 2.6.1998 which is in conformity with the evidence  of PW-7.   He is a 3rd term MLA and an Engineer by  profession. He  admits  that he is somewhat familiar with  the  election law.  Still he says that even though one signature of an MLA was  enough to propose a party candidate, 10 signatures were taken  as  a  measure of safety.  This explanation,  to  our mind,  is somewhat curious.  He also admits that some of the signatories  to the nomination form signed in his  presence. He  was aware of the fact that respondent No.1 was  aspiring to  become a candidate in the said election.  PW-9 is Kushal Parasram  Bophe whose signature is found at serial No.10  in the nomination form.  He has stated that he did not know who he  was  proposing  when  he  signed  the  nomination  form. According  to him, the Secretary to the Leader of Opposition had  asked  him to sign the nomination form, and he did  not enquire  whether the Leader of Opposition wanted him to sign the  form  or the Secretary himself wanted him to sign.   He later  stated  that  he was under the  impression  that  Mr. Pichad,  Leader of Opposition, must have told his  Secretary to  obtain  his  signature.  He had also been  a  Member  of Parliament  earlier.  PW-10 is Krishnarao Rakamajirao  Desai whose  signature  is found at serial No.8.  He  also  stated that he signed the nomination form when it was blank.  PW-11

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is  Mr.  Marotrao S.  Kowase who says that his signature  is found  in  the  nomination form at serial No.4 and  that  he signed the same when the candidates name was not filled in. He further stated that when he received a show cause notice, he replied to the same but he does not remember the contents of the notice.  He, however, admits that all the 10 MLAs who received  the notices, replied to the same taking  identical defence.   He also stated that it is not open to party  MLAs to  sign  a nomination paper as a proposer of any  candidate without the directive from the party High Command.  PW-12 is Deshmukh  Sahebrao Sakojirao who also stated that he  signed the  nomination  paper  when  it  was  blank  and  that  his signature  is found at serial No.3 therein.  He stated  that even  though he did not receive a show cause notice, he read about  issuance  of  the same in the newspaper and  came  to Delhi,  got  the notice and thereafter sent his  reply.   He also admits that like others he took the defence that he had signed  a blank nomination form in the office of the  leader of  Opposition.  He is a 4th term MLA.  PW-13 is Dilip Walse Patil  whose  signature  is  found at  serial  No.1  in  the nomination  paper.  He stated he signed the same on 2.6.1998 when  it  was  blank, and he was asked by the staff  of  Mr. Pichad  to  sign  the  same.  He stated  that  he  does  not remember  the name of the staff member who had asked him  to sign,  and  that it was the normal practice to sign a  blank nomination  form.  On coming to know from the newspaper that show-cause  notices  have been issued to the signatories  to the  nomination  form of respondent No.1, he came to  Delhi, collected the show cause notice and replied thereto.

     From  the evidence of these witnesses, it is seen that all  of  them have stated that they signed blank  nomination form  because  it  was the practice of the party  to  obtain signatures  on  blank  forms, and on coming to know  of  the issuance  of  show cause notice or in receipt thereof,  they came to Delhi, collected the notices in cases where they had not  received the same, and sat together and deliberated  on the  reply  to be sent and agreed upon a common stand  being taken  and  on the said basis, they sent in similar  replies wherein  all  of  them stated that they had signed  a  blank nomination  form in the chamber of the Leader of Opposition. It is also clear from their evidence that all of them signed the  nomination  paper  in  the chamber  of  the  Leader  of Opposition  Mr.  Pichad either at the request of Mr.  Pichad or  his  Secretary.   These  witnesses knew  that  only  one signature  was necessary if their party candidate was to  be proposed,  even  then  they  all   agreed  to  append  their signatures to one nomination form.  Many of them as a matter of  fact signed the nomination paper in the presence of each other.   The explanation given by some of the witnesses that it  was  as  a measure of caution that  10  signatures  were obtained  on the same nomination form is extremely difficult to  be  accepted in the background of the fact that the  law requires only one signature if the nomination paper is to be used  for  a  party  candidate of  theirs.   Therefore,  the unified  stand  of  these  witnesses that  they  signed  the nomination paper for a party candidate has to be rejected on that  count only.  The next stand as to the practice of  the party  to obtain signatures on the blank nomination form  to be  utilised  by the party candidate subsequently will  also have  to  be  rejected  because no  registered  party  would develop  a  practice  to collect signatures in  advance  for proposing a candidate not belonging to their political party and  which  requires  10  signatures to  propose  him  as  a candidate.   Such  practice, in our opinion, does not  sound

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logical.   That apart, if as a matter of fact the party  did evolve  a  practice  of that nature of  collecting  so  many signatures  on  one nomination form then we think the  party would not have issued them a show cause notice because their act  was  in  conformity with the party practice.   On  this score also, we are not inclined to accept the explanation of the  said  witnesses  that  all   their  signatures  on  one nomination  paper were obtained as a practice of the  party. It  may  be  possible that the party might  have  evolved  a practice to obtain advance signature on a nomination form to propose  its  candidate  to be decided at a later  date  but since  not  more than one signature is required by  law  for proposing  a party candidate, the party would not have taken more  than one signature on a single nomination form.   Such is not the case in hand.  In the instant case it is the case of  the  said  witnesses that they were asked to  put  their signatures on a single nomination form which would mean that the signatures were being obtained for proposing a candidate other   than   their  party   candidate.    Therefore,   the practice/custom  put  forth  by these  witnesses  cannot  be accepted.   From the evidence, as noticed hereinabove, it is clear  that these experienced legislators definitely had the knowledge  that their signatures were being taken to propose a  candidate  who  is going to contest the elections  as  an independent  or will be used by a candidate not belonging to a registered political party.  Therefore, the question to be decided   is:   whether  these   witnesses  had  either  the knowledge  who that candidate was going to be or whether the name  of such candidate was already there in the  nomination paper  or  not.   While deciding this question  of  fact  it becomes necessary to go into the conduct of these witnesses. Almost  everyone  of them knew respondent No.1 who till  the date  of  filing of nomination paper was a party  member  of theirs.   They also knew that he was aspiring to contest the said  elections.   From  the records, it can  be  seen  (See Ground  No.8  of  the  S.L.P.)   that  respondent  No.1  was previously  a  member  of the said party as  also  a  former Minister  and  a  sitting  MLC as a  member  of  the  Indian National  Congress,  whose term was to expire  on  7.7.1998. The  signature of respondent No.1 on the nomination form was obtained  in the chamber of the Leader of Opposition who was a  member of the Indian National Congress.  These  witnesses signed  on  the nomination form at the request of  the  said Leader of Opposition or his Secretary without questioning as to  the  candidate  who  was   going  to  utilise  the  said nomination  paper.  These facts, if taken in the  background of  the  fact  that  all  these  witnesses  are  experienced legislators,  would  lead to one and the  only  irresistible conclusion  that  they  appended  their  signatures  to  the nomination  form to propose a candidate who was not going to contest  the  election as a member of their political  party but  who was a person certainly known to them.  That  person in  the  context of the material available on record can  be none other than respondent No.1.  From the evidence of these witnesses  it is also clear that it was not open to them  to propose a candidate in regard to whom there was no directive from  their  High Command.  Therefore, it is  reasonable  to infer  that  these candidates would not have signed a  blank nomination  form with 10 signatures lest the same should  be misused  and  they be put into trouble.  Hence, unless  they were  certain  who that candidate was, they would  not  have signed  the nomination form.  Therefore, it is reasonable to presume,  as  is  the normal practice,  that  the  proposers signed  the nomination form when the name of the  contesting candidate  whom they were proposing was incorporated in  the

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nomination  paper,  and in the instant case such name  could have been only that of respondent No.1.

     Inspite  of the above inference of ours, we will  have to  still consider the evidence of these witnesses as to why all  of them deposed that they signed a nomination form when it  was  blank.  The answer to this question is not  far  to seek.   It  is  to  be  noted that  after  the  election  of respondent  No.1  these  witnesses either came  to  know  or received show cause notices issued by the party High Command seeking  their  explanation  as to the  circumstances  under which they came to propose the name of respondent No.1.  The evidence  on  record  shows that all these  witnesses  after concerted  plan  decided to tell the High Command  that  the nomination  paper  was signed by them when it was blank  and that  they  had intended to propose a party candidate.   The language  used  in  the  reply and  the  evidence  of  these witnesses  go  to show that all of them together decided  on the  nature of the reply.  That also shows that there was an effort  to extricate themselves from the likely disciplinary action  by  the  High  Command.   The  High  Command  having accepted  such  explanation, these witnesses had no way  out but  to stick to that stand even before the court which they did  in  not  a very convincing manner.   Their  parrot-like statement  that  they  signed a blank nomination  form  runs counter  to  the ordinary commonsense and reasoning.   Their conduct  in  not  questioning the Leader of  Opposition  for having misused their signatures after they came to know that it  was used for nominating respondent No.1, in our opinion, belies  their statement that they were ignorant of the  fact who  they  were  proposing  or  that  they  signed  a  blank nomination  form.  It is to be noted that their evidence  is in  the nature of an interested witness because if they  had deposed  differently  and admitted that they had signed  the nomination  paper  of respondent No.1 then there  was  every likelihood  of  the  High   Command  reopening  disciplinary proceedings  against them.  Therefore, they had to stick  to the  stand that they had already taken in reply to the  show cause  notice.  In view of this self-preservation  instinct, it  had become necessary for them to depose before the court that  they  had signed only a blank paper.  In that view  of the   matter,  their  evidence   cannot  be  accepted   sans independent corroboration of the same.  Their evidence could have  been corroborated if Mr.  Pichad or his Secretary  who allegedly  asked them to sign the nomination paper, were  to be examined.  But that not having been done, we must draw an adverse  inference.   Therefore,  we are of  the  considered opinion  that  it is not possible to place reliance  on  the evidence  of  these  witnesses  in  order  to  come  to  the conclusion  that  they signed a blank nomination paper.   In our  opinion,  the normal practice (though not  required  by law)  of proposing a candidate to an election would  require the  proposer  to sign the nomination form when it  contains the  name of the candidate he intends to propose.  Since the petitioner  has propounded a practice contrary to the normal one,  the burden lay on him to establish that the  proposers in the instant case had signed a blank nomination paper, and he  having failed to discharge the said onus his  contention in this regard must fail.

     At  this stage, we must also notice that acceptance of this  type  of oral evidence on its face value will lead  to serious repercussions on the results of elections held under the  Act  in  this country.  It is possible  that  a  single disgruntled  or  motivated proposer by such evidence  before

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the  Election  Tribunal  could upset the result of  a  valid election, therefore, courts should be extremely cautious and be  on  guard while scrutinising such evidence  wherein  the result  of election of a validly elected candidate could  be in  jeopardy.  It is necessary in such cases that the courts should  seek independent corroboration.  In the instant case even  minimal  corroboration is not forthcoming,  as  stated above.   Hence, we decline to place reliance on the evidence of PWs.3 and 6 to 14.

     To this extent, we are of the opinion that the finding of  the  High Court that the nomination form was blank  when signed  by  these witnesses, has to be reversed because  the said  finding is based on the face value of the evidence  of PWs.3  and  6 to 14 which we have held unacceptable  without corroboration.

     Even though the above finding of ours is sufficient to dismiss  this  appeal, it is necessary to deal with  another aspect of the case which also arose for consideration before the  High  Court  and  in regard  to  which  arguments  were addressed  before  us  also.   As   stated  earlier,  it  is contended  on behalf of the petitioner that first proviso to Section  33(1)  of  the  Act imposes an  obligation  on  the proposers  of  the  nomination  to apply  their  mind  while proposing  the  name  of  an  independent  candidate.   This argument  is based on the language of 1st proviso to Section 33(1) which reads thus :

     33.    Presentation   of     nomination   paper   and requirements  for a valid nomination.- (1) On or before  the date appointed under clause (a) or section 30 each candidate shall,  either  in  person or by his proposer,  between  the hours  of eleven oclock in the forenoon and three o  clock in  the  afternoon deliver to the returning officer  at  the place  specified  in this behalf in the notice issued  under section  31  a nomination paper completed in the  prescribed form  and  signed by the candidate and by an elector of  the constituency as proposer:

     Provided  that a candidate not set up by a  recognised political  party,  shall not be deemed to be duly  nominated for election from a constituency unless the nomination paper is  subscribed  by  ten  proposers  being  electors  of  the constituency: (emphasis supplied)

     It  is seen from Section 33(1) that a nomination paper of  a  registered party candidate has to be signed  by  an elector  of  the  constituency as proposer while  under  the first  proviso a nomination paper of a candidate not set  up by a recognised political party has to be subscribed by 10 proposers being electors of the constituency.  Based on that an argument is advanced that while the nomination paper of a party candidate has to be merely signed by a proposer, the Statute  has  deliberately cast a duty on the proposer of  a candidate  not belonging to a recognised political party  to subscribe  to such nomination form as against merely signing the  same.  It is contended by using the word  subscribed, the   Legislature  has  intended  that   in  regard   to   a non-recognised  party  candidate  the   proposer  should  do something  more  than merely signing such  nomination  paper

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i.e.,  there should be an element of application of mind  by the  subscriber before proposing such candidate;  may be  as to  his suitability as a candidate.  This, according to  the appellant-petitioner,  is clear from the deliberate language of the proviso.  It is contended that it would be fallacious to  hold that the expression subscribed would mean nothing more  than  the word signed as has been held by  the  High Court.   The High Court rejecting the said argument  noticed the fact that while the word sign is defined under Section 2(1)  of the Act, the word subscribe is not defined either in  the  Act  or under the Rules.  It  also  considered  the various  dictionary definitions of the word subscribe with reference  to  the  arguments  addressed on  behalf  of  the election  petitioner.   The  High  Court  also  noticed  the observations  of  this Court in regard to use of  the  words subscribe  and  sign  found in the Act in  the  case  of Rattan  Anmol Singh & Anr.  v.  Atma Ram & Ors.  (1955 1 SCR 481)  and came to the conclusion that there is no difference in the two expressions in the context in which they are used in  the  Statute.  While coming to this conclusion the  High Court also noticed the use of the word subscribed found in Section 33(1A) of the Act.  We have carefully considered the arguments  addressed  in this behalf before us.  It is  true that  when  the same Statute uses two different  words  then prima  facie one has to construe that these different  words must  have been used to mean differently.  But then we  will have  to  consider the context in which it is used.  In  the present  case,  it is to be noted that these two  words  are used  with reference to proposing a candidate at an election contemplated  under  the Act.  The word sign is used  with reference  to  proposing a candidate of a  recognised  party candidate  while the word subscribe is used for  proposing the   candidature   of  a  non-recognised  political   party candidate.   The  argument  of the petitioner  is  that  the Legislature  has deliberately by a subsequent amendment used a   different  word  in  regard  to  the  candidate  of   an unrecognised   political   party    to   prevent   frivolous candidature.  It is also contended that apart from using the word  subscribe the number of persons required to  propose such  candidates  was  also increased to 10 under  the  1996 Amendment.  By this it is argued that there is an obligation on  the  part  of the proposer to apply his mind as  to  the suitability  of  the candidate to contest in such  elections and  the  same  should  not   be  done  mechanically.    The petitioner  has also placed reliance on the judgment of this Court in the case of Rattan Anmol Singh (supra).  We are not inclined  to accept this argument also.  As held by the High Court,  it  is  not  for the first time  in  1996  that  the Legislature  used  this word subscribed in the Act.   That word  was in existence in the Statute since the year 1975 in Section 33(1A) of the Act which reads thus :-

     (1A)    Notwithstanding    anything    contained   in sub-section (1), for election to the Legislative Assembly of Sikkim  (deemed to be the Legislative Assembly of that State duly  constituted  under the Constitution),  the  nomination paper  to be delivered to the returning officer shall be  in such form and manner as may be prescribed:

     Provided  that  the  said nomination  paper  shall  be subscribed  by the candidate as assenting to the nomination, and

     (a)  in  the case of a seat reserved for Sikkimese  of Bhutia-Lepcha  origin,  also by at least twenty electors  of

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the  constituency  as proposers and twenty electors  of  the constitutency  as  seconders;   (b) in the case  of  a  seat reserved  for  Sanghas, also by at least twenty electors  of the  constituency as proposers and at least twenty  electors of the constituency as seconders;  (c) in the case of a seat reserved  for  Sikkimese of Nepali origin, by an elector  of the constituency as proposer: (emphasis supplied).

     As  per this sub-section, it is seen that in regard to all the categories of seats enumerated in sub-clauses (a) to (c), the nomination papers will have to be subscribed by the candidate  as  assenting to the nomination paper and by  the proposers  and seconders as such.  Therefore, it is seen  in this Section that the Legislature uses the word subscribed both in regard to the candidate as well as the proposers and seconders  which would negative the distinction drawn by the petitioner  in  regard to the use of the words  subscribed and  signed  in Section 33(1) and so also the  legislative intent  sought to be incorporated by the petitioner.  In the context  in  which the word subscribed is used in  Section 33(1A) shows that the Legislature did not intend to use this word  in  any  manner differently from the use of  the  word signed.   Therefore,  we  are not inclined to  accept  the argument  of  the petitioner that when the Legislature  used the  word  subscribed  in  Section 33(1) of  the  Act,  it intended it to mean something more than merely signing.

     As  stated  above,  the petitioner in support  of  the above contention has relied on the following observations of this Court in the case of Rattan Anmol Singh (supra):

     The  learned counsel for the respondent analysed  the Act for us and pointed out that the word subscribe is only used  in Chapter I of Part V dealing with the Nomination  of Candidates  while  in every other place the word  sign  is used.   We  do  not know why this should be unless,  as  was suggested  by the learned Solicitor-General, the Legislature wished  to underline the fact that the proposer and seconder are  not merely signing by way of attesting the  candidates signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and  as  a person for whom they are prepared to vouch,  also that  the  candidates  signature imports more than  a  mere vouching  for the accuracy of the facts entered in the form. It  imports assent to his nomination.  We think the  learned Solicitor-General  is  probably  right  because  section  33 speaks of

     a  nomination paper completed in the prescribed  form and  subscribed by the candidate himself as assenting to the nomination. (emphasis supplied).

     The  above  observations  of   this  Court  cannot  be accepted  as a ratio laid down.  In our opinion, it is  only an  observation without laying down the principle which  the petitioner  is trying to deduce in his arguments.  This view of  ours  is clear from the following further discussion  of this Court in the said case :

     Now if subscribe can mean both signing, properly so

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called,  and the placing of a mark (and it is clear that the word  can be used in both senses), then we feel that we must give  effect to the general policy of the Act by drawing the same distinction between signing and the making of a mark as the  Act itself does in the definition of "sign. It is true the word "subscribe" is not defined but it is equally clear, when  the Act is read as a whole along with the form in  the second  schedule,  that subscribe can only be used in  the sense  of  making a signature and as the Act tells us  quite clearly  how  the different types of signature are  to  be made,  we are bound to give effect to it.  x x x  (emphasis supplied).

     For  this reason also we agree with the finding of the High  Court  that the expression subscribe in the  proviso cannot  be read differently from the expression sign  used in Section 33.  Therefore, this contention of the petitioner is  also rejected.  For the reasons stated above, the appeal is dismissed with costs.