N.L. Untwalia, J.

1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (Act 43 of 1951) from the decision of the Election Tribunal, Purnea, whereby the election of the appellant to the Bihar Legislative Assembly from Supaul Constituency in the District of Saharsa has been declared void, The appellant in the appeal is Sri Parmeshwar Kumar, who was the respondent in the Election petition before the Election Tribunal and for the purposes of avoiding confusion he will be hereinafter referred to as respondent in this judgment. The respondent in this appeal is Sri Lahtan Chaudhary, who was the petitioner before the said Tribunal and for the reasons just mentioned, he will be referred to as petitioner in this judgment.

2. The petitioner was selected by the Congress Party to contest the last Assembly -Election from the Supaul Constituency and he filed three nomination papers before the District Magistrate of Saharsa, who was the Returning Officer o the Constituency. The nomination papers were filed personally by the petitioner on 28-1-1957. The last date for filing the nomination papers was the 29th January.

The respondent as well as two more candidates also filed their nomination papers before the said Returning Officer who fixed 1-2-1957, at 11 A.M. for scrutiny of nominations. The petitioner had filed three nomination papers, one signed by one Sukhdeo Singh as the proposer and the other two signed by one Chandra Kishor Pathak as the proposer of the petitioner.

The nomination papers were respectively marked A/1, A/2 and A/3 by the Returning Officer. Neither the petitioner nor anybody else on behalf of the petitioner was present before the Returning Officer at the appointed time and date at the time of scrutiny of nominations. Objections were raised by or on behalf of the respondent that the nomination papers filed by the petitioner did not bear any genuine signature of the respective proposers.

The Returning Officer accepted the ex parte objection raised on behalf of the respondent to the nomination papers of the petitioner and rejected all of them as invalid on the ground that the signatures of the proposers on the nomination papers, were not genuine. The petitioner and his proposers reached Saharsa on the same date, i.e. 1-2-1957, after the petitioners nominations had been rejected. The petitioner filed a petition before the Returning Officer asking him to revise) or review his order rejecting his nominations alleging that the said rejection had been obtained by fraudulent means and by misre-presenting to the Returning Officer that they did not bear the signatures of the proposers. Two affidavits also were filed on the same date sworn by the two proposers to the effect that the nominations bore their genuine signatures as proposers.

The Returning Officer felt powerless to hold any further enquiry in the matter as he had no power either to revise or review his own order rejecting the nominations. The result was that the election was held without the petitioner being in the field to contest the same. The other two candidates were defeat" ed and the respondent was declared elected. A petition was thereafter presented by the petitioner under Section 80 of the Act for a declaration mat the election of the respondent was void inasmuch as the nomination of the petitioner had been improperly rejected.

The petitioners further case was that no objection had been taken by anybody in respect of the signature of the proposer on the nomination paper marked A/3 by the Returning Officer and on that additional ground it was stated that the rejection of that nomination paper was improper over and above the general ground that all the three nomination papers bore the genuine signatures 01 the proposers.

3. The contention of the respondent before the Tribunal was that the nominations had not been improperly rejected, firstly because they did not bear the genuine signatures of the proposers and, secondly, because on the materials available before the Returning Officer he had no alternative but to reject them and ii that view of the matter it could not be held that the nominations had been improperly rejected by him.

It was also stated on behalf of the respondent that objection had been raised on his behalf with regard to the signature of the proposer on the nomination paper marked A/3 also. A point was also raised before the Tribunal that the nomination papers of the petitioner were not filled in by the proper persons who were required to fill up their respective portions of the nomination papers.

4. The sole Member of the Election Tribunal has allowed the application and has declared the election of the respondent void. He has held that signatures of the proposers on the three nomination papers filed on behalf of the petitioner were genuine; that the Returning Officer had made enquiries from the persons present and had complied with the provisions of Section 36(2) of the Act but the nominations were improperly rejected inasmuch as on evidence before the Tribunal it was satisfied that they bore the genuine signatures of the proposers; that no objection had been taken on behalf of the respondent with regard to the signature on the nomination paper marked A/3 but in the facts and circumstances of the case the Returning Officer had rightly acted on his own motion in rejecting A/3 also; and that the provisions regarding filling up of forms by particular persons concerned were mere directory and not mandatory and violation of the said directions would not render the nominations liable to be rejected.

The Tribunal was also of the opinion that the Returning Officer had no power to revise or review his previous order and he was justified in refusing to do the same. In its opinion, the election had been materially affected by improper rejection of the petitioners nominations.

5. Mr. K.B.N. Singh, learned counsel appearing for the appellant, who, as stated above, for the purpose of avoiding confusion is being referred to as respondent in this judgment, has urged the following points in support of the appeal : (1) That even on the evidence before the Tribunal it ought to have been held that the signatures of the proposers were not genuine, (2) that the powers of the Tribunal were limited to decide the matter only on the materials which were available before the Returning Officer, that is, the Tribunal has erred in taking fresh evidence and materials into consideration to judge the question of the genuineness of the signatures whereas it ought to have held that the nominations of the petitioner were properly rejected by the Returning Officer on the materials before him on which no other view was possible to be taken; (3) that the columns in the nomination papers meant to be filled up by the proposer, admittedly not having been filled up by me proposers themselves, the nomination ought to have been held to have been properly rejected and (4) that on the materials available on the record it could be found that the petitioner was a District Convener of the Bharat Sewak Samaj which organisation had contracts from the Government for doing some work in the Kosi Project and, therefore, the petitioner was a disqualified person for being a member of the State Legislative Assembly under Section 7(d) of the Representation of the People Act, 1951.

6. Mr, Lalnarayan Sinha, appearing for the respondent in this appeal, who has been, as stated above, characterised as petitioner throughout this judgment, combated the first three points urged on behalf of the appellant, the respondent before the Tribunal. As regards the fourth point he submitted that this was a new point, not even taken in the grounds of appeal, and it required much investigation of the facts which were neither pleaded nor found and, therefore, could not be entertained for the first time in this Court.

He accepted the decision of the Tribunal on almost all the points except one, namely, that the Returning Officer could reject the nomination paper marked A/3 before him on his own motion. He contended that no objection was raised with regard to the signature o the proposer on that nomination paper and, therefore, it could not be rejected even on the materials before the Returning Officer.

7. Mr. K. B. N. Singh took us through the en4 tire evidence on the record to challenge the finding of the Tribunal to the effect that the three nomination papers, A/1, A/2 and A/3, which were respectively marked Exts. 1, l(c) and l(d) before the Tribunal during the hearing of this election petition, bore genuine signature of the respective proposers. Having heard him at some length I am of the opinion that the decision of the Tribunal on this question is correct.

The signatures were owned by the respective proposers, Sukhdeo Singh and Chandra Kishor Pa-thak as their own not only before the Election Tribunal but had been owned as such by filing affidavits before the Returning1 Officer on 1-2-1957. Some of the witnesses examined on behalf of the respondent had admitted that they were in possession of some writing and/or signatures of these two persons and yet no effort was made on behalf of the respondent before the Tribunal to produce any admitted writing or signature and to get them compared by any handwriting expert.

The initial onus no doubt was on the petitioner to prove his case before the Tribunal, but, in my opinion, the onus was sufficiently discharged by examining the two persons concerned as also some other witnesses in support of the fact that the nomination papers in question bore their genuine signatures as proposers. The nominations had been filed by the petitioner before the Returning Officer a day earlier than the last date fixed for filing the same. Seemingly there was no hurry in filing them and it does not Stand to reason why the petitioner, instead of taking the genuine signatures of the proposer, would take the risk of forging the signatures.

Anybody, who was a voter could have been a proposer and it is difficult for me to believe that two persons were not available to the petitioner for signing bis nomination papers as proposers. Mr. Singh has pointed out some minor discrepancies hither and thither in the oral evidence adduced before the Tribunal and has also tried to show that the persons examined on behalf of the petitioner are all interested persons and, therefore, their evidence ought not to have been accepted. The discrepancies pointed out are so minor that I do not feel inclined to discuss them in any detail here.

When elections are fought on party lines in a Democratic country, it is natural that the supporters of a particular candidate would be interested in him in one way or the other and their evidence cannot be rejected simply on the ground of interestedness. Having given my due consideration to the submissions made on behalf of the respondent, I am not prepared to differ with the decision of the Election Tribunal and hold in agreement with it that the three nomination papers filed on behalf of the petitioner bore the genuine signatures of the two proposers.

8. Mr. Singh developed his second submission in this way. He submitted that the Returning Officer "was obliged to Hold the scrutiny of the nominations on the appointed date and time under Section 36(5) of the Act. Objections were raised before him on behalf of the respondent to the nominations filed on behalf of the petitioner. The Returning Officer held the summary enquiry as required by Section 36(2) and rejected the nominations of the petitioner under Section 36(2)(c) of the. Act. Neither the petitioner nor any of his proposers nor any of his agents was present at the tima of the scrutiny and at trie time the summary enquiry was held by the Returning Officer on objections being raised on behalf of the respondent to the nominations of the petitioner. The Returning Officer, therefore, liad no material before him to disbelieve the testimony of the persons present before him and to reject their objections.

In that view of the matter it cannot be held that any nomination of the petitioner had been improperly rejected by the Returning Officer, I am unable to accept this contention. I am of the opinion that under proviso to Section 36(5) the Returning Officer could have allowed time to the candidate concerned to rebut the objections raised by or on behalf of the respondent to the nominations of the petitioner eveu though-time was not asked for, as, nobody was present on fee half of the petitioner at the time of the scrutiny and at the time the objections were raised.

I am of the view that where objections are raised to any nomination paper which requires an investigation or a summary enquiry of certain facts, it would have been proper for the Returning Officer to adjourn the hearing of the objections for some time or for a day. The matter, of course, would be different if any nomination, on the face of it is invalid for violation of any statutory provisions of the Act or the rules framed thereunder. Be that as it may, it has not been urged on behalf of the petitioner that it was obligatory on the Returning Officer to adjourn the enquiry with regard to the genuineness of the signatures of the proposers.

In that view of the matter it cannot be said that his rejection was without jurisdiction. The Returning Officer is not a Court as has been held in the case of Virindar Kumar Satyawadi v. The State of Punjab, (S) : AIR 1956 SC 153 [LQ/SC/1955/108] and no provisions were brought to my notice either from the Representation of the People Act, 1951, or from the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, providing that the decision of the Returning Officer rejecting any nomination on any of the grounds mentioned in Section 36(2), shall be final. The enquiry before him is a summary enquiry.

The provisions of the statute beginning from S, 80 to 122 would show that the Election Tribunal acts as a Court in the matter of hearing election petitions and it is meant to give scope of a fuller enquiry with regard to the various matters for declaring any election void. Objections before the Returning Officer need not be in writing, nor is it incumbent upon the Returning Officer to hold the enquiry in any prescribed manner, nor is he under any obligation to reduce to writing the statements made before him by the persons present before him. He may make the enquiry as he thinks fit, may not note down the names of all the persons from whom he makes the enquiry and may not discuss in detail the materials upon which he bases his decision of the enquiry. In that view of the matter it is difficult to accept the proposition that the powers of the Tribunal are restricted to see as to whether the nomination papers had been properly rejected by the Returning Officer on the materials available before him. The wit (sic) case is a glaring example to establish that such a contention cannot be upheld.

Referring to the orders of the Returning Officer rejecting the three nominations it would be found that they do not disclose as to which of the persons present before him objected to the signatures of the proposers being genuine and in what language and which of the persons supported the version and in what language.

It may be that even on those statements the Tribunal could have held that their statements were not sufficient to hold that the signatures of the proposers were not genuine. But the materials before the Returning Officer are not available before the Tribunal, The entire oral evidence taken by the Tribunal would, of course, be fresh material before it and if the contention raised by Mr. Singh were to be accepted, the entire oral evidence has got to be rejected and one will be driven to an absurd position.

9. Mr. Singh relied upon two authorities in support of this contention, namely, Durga Shankar Mehtal v. Raghuraj Singh, : AIR 1954 SC 520 [LQ/SC/1954/99] and Dudh Nath Prasad v. Mulchand . In the Supreme Court case the facts were that one Vasant Rao, who was declared duly elected to the Legislative Assembly, was at all material times found to be under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of the State under Art. 173 of the Constitution of India.

At the time of the scrutiny of the nomination paper by the Returning Officer nobody raised any objection as to his being under age. A certified copy of an entry made in the electoral roll of the consti-tuency showing the name of Vasant Rao as the elector was produced before the Returning Officer. Referring to Section 36(7) of the Representation of the People Act, as it stood before the amendment of 1956 it was held by Mukherjea J. (as he then was):

"In other words, the electoral roll is conclusive as to1 the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did des-cribe him as having been of proper age and on the face of it, therefore, he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive; and if in these circumstances he did not reject the nomination of Vasant Rao, it cannot be said that this was an improper acceptance of nomination on his part which Section 100(1)(c) of the Ad contemplates."

Later on, His Lordship has observed as follows :

"It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to a finding that the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer."

In that view of the matter it was held in that case that the case was not covered by Section 100(1)(c) but was covered by Section 100(1)(a) (wrongly mentioned as 100 (2) (c) in the judgment as reported in the AIR volume). It will be noticed from the above observations that the case is distinguishable on two grounds. Firstly, that no objection having been raised at all as to the respondent Vasant Rao being of under age, the Returning Officer was not called upon to enquire into the matter. If he would have been called upon to enquire into the matter, his decision would not have been final and the Election Tribunal might on evidence placed before it come to a different finding. Secondly, the objection as to the age was really not one concerning the nomination paper but was concerning the entry in the electoral roll and in effect it amounted to this that the entry in the electrol roll was wrong. I am of the opinion that the decision in the Supreme Court case cannot be stretched to hold that on no account the Election Tribunal can look into fresh materials and take a contrary view of the fact to the one taken by the Returning Officer, on such fresh materials.

10. The Allahabad case more or less was of a similar nature as the Supremo Court case and following the Supreme Court decision Desai, J., held that the nomination of the petitioner in that case had not been improperly accepted by the Returning Officer. That case also is distinguishable from the facts of the present case on similar lines as I have distinguished the decision of the Supreme Court.

11. Mr. Singh also cited the cases of N. P. Ponmiswami v. Returning Officer, Namakkal Constituency : AIR 1952 SC 64 [LQ/SC/1952/2] , Jagan Nath v. Jaswant Singh ; Rattan Anmol Singh v. Ch. Atma Ram, : AIR 1954 SC 510 [LQ/SC/1954/102 ;] , Hari Vishnu Kamath v. Ahmad Ishaque, (S) : AIR 1955 SC 233 [LQ/SC/1954/177] , Damodar Goswami v. Narnarayan Goswami AIR 1955 Ass 163 and Harihar Singh v. Ganga Pra-sad Singh, 1958 Pat LR 11; (: AIR 1958 Pat 287 [LQ/PatHC/1958/4] ). In my opinion none of these cases has any relevancy to the point at issue in this case. The facts in those cases and the points decided therein are entirely different and it is not necessary for me to deal with them in any detail here,.

Learned Counsel also made a reference to two English Cases, namely, Mather v. Brown (1876) 1 CPD 596 and R. v. Deighton (1844) 13 LJQB 241. In (1876) 1 CPD 596 the point decided was that the name of the candidate, which was Robert Vicars Mathers inserted as "Robert v. Mathers did not specify the requirement of the prescribed form. I would quote a passage from Halsburys Laws of England, Third Edition, Vol. 14 at p. 93, where referring to this case it has been stated as follows :

"In one case it has been held that the use of |an initial instead of setting out the forename in full was a fatal defect; but the statutory provisioas-on which that case was decided were different and it is submitted that the case would not now be followed."

The Queens Bench case referred by the learned. Counsel also is a case where in voting papers describing a party for the office of Alderman, as o the place where he daily transacted his business instead of describing him of the place at which he resided, was held to be such a misdescription of the place of his abode as to avoid his election. In my opinion, these cases also have no relevancy to the point at issue. Mr. Lalnarayan Sinha referred to the case of Surendra Nath Khosla v. Section Dalip Singh, (S) : AIR 1957 SC 242 [LQ/SC/1956/110] , to show that the contention put forward by Mr. Singh wasnot sound. Sinha, J., while rejecting a similar cnntention held as follows :

"In this case the nomination had been attested by a local Magistrate and the Tribunal after referring to the relevant evidence has recorded the-finding that the Magistrate had been specified by the Election Commission in that behalf. The question, therefore, is essentially one of fact. But the learned Counsel for the: appellants contended that, as found by the Tribunal, there bad been a mistake of omission in the communication from the Election Commission to the local election officer and that such a mistake, clerical or accidental though it may have been, has the effect of rendering the attestation unacceptable:. We are not prepared to accede to that contention as sound in principle. The Tribunal having found as a fact that the persons whose thumb impressions the nomination paper purported to bear had really proposed and seconded the candidate and that those thumb impressions had been attested by a Magistrate who had in fact been authorised in that behalf, there is no room for the-contention that the Returning Officer was justified in rejecting the nomination paper in question,"

In my opinion, this case negatives the contention put forward by Mr. K. B. N. Singh.

12. The third contention of Mr. Singh is based upon Section 33 of the Representation of the-People Act, 1951, which requires that each candidate shall file a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.. "Form" means a form in Schedule 1 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956. Rule 4 requires, that every nomination paper presented under sub-sec. (1) of Section 33 shall be completed in such one of the forms 2-A to 2-F as may be appropriate.

The appropriate form given in schedule 1 for election to the Legislative Assembly of a State is form 2-B. The) first portion of the form is meant for the proposer, the second is for the candidate and the third for the Returning Officer. On the top of each of these portions is written; "(To be filled by the proposer)," "(To be filled by candir date)" and "(To be filled by the Returning Ofti-r cer)." Mr. Singh contended that "To be filled by the proposer, by the candidate, and by the Return-: ing Officer" means that the respective portions are to be filled by the respective hands of the proposer, the candidate and the Returning Officer.

If the contention is accepted it would mean-that an illiterate person can neither be a proposer nor be a candidate. Our Constitution has granted adult franchise subject to certain restrictions and illiteracy is not one of them. Section 7 of the-Representation of People Act, 1951, enumerates the disqualifications for member-ship of a Parliament or of a State Legislature and illiteracy is not one such disqualification. Section 33 requires the prescribed form to be completed and signed by the candidate and a proposer, and does not require the completion of the form in the hands of the candidate and or the proposer.

The word "signed" has been defined in section 2(1) of the Act, which is as follows : " sign in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed." This definition clearly envisages that an illiterate person can be a proposer and a candidate for the purposes of signing the form. In that view of the matter it will be absurd to hold for the purposes of the words put in the brackets in the form, that an illiterate person cannot be a candidate and/or a proposer. The rules have been framed under Section 169 of the Act by the Central Government which section empowers the Central Government to make rules for carrying out the purposes of the Act.

If the interpretation suggested by the learned Counsel is accepted, the rule and the form shall be ultra vires the Central Government as it would be beyond their rule making power. In that view of the matter, the reasonable interpretation of the words in the. brackets in the form concerned is that the respective portions are meant to be filled up by or on behalf of the proposer, by or on behalf of the candidate and by or on behalf of the Returning Officer. Of course, it must bear their signatures and a proposer and a candidate may sign as defined in the Act because the question of signing in that way would not arise as far the Returning Officer is concerned. I, therefore, hold that there is no substance in the third contention of Mr. Singh.

13. We did not allow Mr. Singh to argue the fourth point which required investigation of further facts and the point not having been taken at any stage of the election or the election proceeding, could not have been allowed to be raised for the first time in this Court during the course of the argument.

14. In view of my decision on the first two points, it is not necessary to decide the question canvassed before us as to whether objections had been raised on behalf of the respondent as respects the genuineness or otherwise of the signature of the proposer on the nomination paper marked A/3 before the Returning Officer; if not whether it was open to the Returning Officer to reject that nomination paper on his own motion.

I may, however, observe that the objections regarding the signatures of the proposers on the nomination papers marked A/1 and A/2 raised on behalf of the respondent were reduced to writing by the Returning Officer, but it seems to me that objection was raised with regard to A/3 also but, of course, the same was not reduced to writing. Be that as it may, I need not pursue this matter further.

15. In the result I hold that the decision of the Election Tribunal is correct and the election of the appellant, who was respondent before the Tribunal, has been rightly declared void. The appeal, therefore, fails and it is dismissed with costs. Hearing fee Rs. 250/-.

C.P. Sinha, J.

16. I agree.