1988 PLP 823 (MLD)

MUHAMMAD MUNIR KHAN, J.‑‑This Constitutional petition is directed against the rejection of nomination paper of the petitioner, Ghulam Yaseen, in regard to his election to the electoral unit of Ward No.10, Chak No.187/7‑R, Union Council No.64, Tehsil Fortabbas, District Bahawalnagar. The domination paper was rejected by the Returning Officer (Assistant Commissioner, Fortabbas) on the ground that the petitioner's declaration appended to his nomination paper was not signed by him. Order of the Returning Officer in this behalf was challenged by the petitioner by taking an appeal before the appellate authority (Additional Deputy Commissioner, Bahawalnagar) but without success. Hence this Constitutional petition.

2. Provisions of law requiring a candidate to sign a declaration accompanying his nomination paper are contained in sub‑rule (2) of rule 1.3 of the Punjab Local Councils (Election) Rules, 1979 hereinafter referred to as the said rules. Rule 13 makes the following reading:‑‑ "

13. Nomination for election.‑‑(1) Any voter of an electoral unit may propose or second the name of any person duly qualified to be a member for that electoral unit. (2) Every proposal shall be made by a separate nomination paper, in Form 111, which shall be signed by the proposer and the seconder and shall contain. (a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualfication for being elected as a member; and (b) a declaration' signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder. (3) Every nomination paper shall be delivered by the candidate, or his proposer or seconder to the Returning Officer or his nominee who shall acknowledge the receipt of nomination paper specifying the date and time of receipt. (4) A person may be nominated in the same electoral unit b more than one nomination paper (5) If any person subscribes to more than one nomination paper as It proposer or seconder, all such nomination papers, except the one received first by the Returning Officer, shall be invalid. (6) The Returning Officer shall assign a serial number to every nomination paper as a endorse thereon the name of the person presenting it, the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny. (7) The Returning Officer shall cause to be affixed at some conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate and the names of the proposer and the seconder". It was on the basis of clause (c) of sub‑rule 3 of rule 15 of the said rules that the nomination paper of the petitioner was rejected. Rule 15 runs as under:‑‑ "

15. Scrutiny

(1) The candidates, their election agents, proposers and seconders, and one other person authorised in this behalf by each candidate may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule 13. (2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub‑rule (1) examine the nomination papers and decide an objection raised by any such person to any nomination. (3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that:‑‑ (a) the candidate is not qualified to be elected as a member; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (c) any provision of rule 13 or rule 14 has not been complied with; or (d) the signature or thumb‑impression of the proposer or the seconder is not genuine: Provided that:‑ (i) the rejection of a nomination paper shall not invalidate the nomination of candidate by any other valid nomination paper; (ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, such as error in regard to the name, serial number in the electoral roll or other particulars of the candidate, his proposer or seconder: and (iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect. (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall, in the case of rejection, record a brief statement of the reasons therefore; (5) Where the solitary nomination paper of a candidate or where all the nomination papers of a candidate have been rejected, the Returning Officer shall, on request, supply to the candidate, on the same days, certified copies of such orders free of cost. (6) The Returning Officer shall immediately send to the Deputy Commissioner the rejected nomination paper or papers alongwith his orders thereon."

3. It was contended by learned counsel for the petitioner that the absence of the petitioner's signature on the declaration was not a defect of substantial nature and, therefore, the Returning Officer should have allowed that defect to be remedied by invoking the provisions of paragraph (ii) of the proviso to clause (d) of sub‑rule (3) of rule 15 instead of rejecting the nomination paper for want of signature. His argument was that by not allowing the petitioner to affix his signature on the declaration the Returning Officer had failed to exercise the jurisdiction vesting in him.

4. We have carefully considered the plea raised by learned counsel for the petitioner but are unable to agree with him. In paragraph (ii) of the proviso to clause (d) of sub‑rule (3) of rule 15 a defect which is not of substantial nature has shell out as an "error in regard to the name, serial number in the electoral roll or other particulars of the date, his proposer or seC6nder". According to learned counsel for the petitioner the absence of signature of the petitioner on the declaration was an error in the "particulars of the candidate". The particulars) of the candidate are his name, the name of his father/husband, his address, serial number in the electoral roll, name of the electoral unit, local council, Tehsil and) District, etc. which are required to be given in the nomination paper but the signature of the candidate is not one of his particulars. The requirement of affixing signature to the declaration and that of giving particulars of the candidate are different obligations and the two cannot be mixed up together. If a candidate files a wrong declaration, which is to be made on oath, he exposes himself to penal action but if the declaration is not signed by him he can easily disown the declaration when faced with any such action. Thus, there is wisdom behind) obliging the candidate to affix his signature on the declaration.

5. The remediable defects mentioned in paragraph (ii) of the proviso to clause (d) of sub‑rule (3) of rule 15 are of formal and clerical nature but, as explained above, the absence of signature on the declaration is a defect of material character. To hold otherwise would amount to allowing the proposer and seconder of a candidate to project a candidate for the purpose of election without his (candidate's) even agreeing to contest the election. This could not be the intention of the rule‑making authority which intended the election to be held in solemn and organized manner. We are, therefore, of the considered view that the omission of a candidate to sign the declaration is a defect which cannot be cured under paragraph (ii) of the proviso to clause (d) of sub‑rule (3) of rule

15. In other words, the said defect is fatal to the nomination paper.

6. In view of the conclusion reached by us, the orders of the two authorities below by which the petitioner's nomination paper was rejected are not open to any legitimate exception. The writ petition is dismissed in limine. M.Y.H./2251/L Petition dismissed.