02 December 1952
Supreme Court
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THAKUR PRATAP SINGH Vs SHRI KRISHNA GUPTA AND OTHERS.


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PETITIONER: THAKUR PRATAP SINGH

       Vs.

RESPONDENT: SHRI KRISHNA GUPTA AND OTHERS.

DATE OF JUDGMENT: 02/12/1952

BENCH:

ACT: Election   Dispute-Rule   requiring   candidate   to   state occupation  in nomination paper-If mandatory  in  character- Duty of Court-Central Provinces and Berar Municipalities Act (II) of 1962, ss. 9(1) (iii) (c), 23.

HEADNOTE: The appellant was a candidate for the office of President of the Municipal Committee, Damoh.  The nomination was made  in an  old form under the old rules which required a  candidate to  enter his caste.  Under the new rules this  was  changed and  occupation had to be stated instead, which none  except the respondent No. I had done.  Objection to the validity of the  appellant’s  nomination  paper  was  overruled  by  the Supervising  Officer.   The appellant  secured  the  highest number  of votes and was declared elected.   The  respondent No. 1, thereupon, filed the election petition.  He failed in the  Election  Tribunal which held that the defect  was  not substantial  and  was  curable.  The  High  Court,  however, reversed this decision in revision, holding that failure  to comply ’with any of the provisions set out in the rules  was fatal  and  in  such cases the nomination  paper  should  be rejected. 1030  Held,  that  the  rule  requiring  the  occupation  of  the candidate to be stated in the nomination form was  directory and not mandatory In character and as the failure to  comply with  it did not affect the merits of the case as laid  down in s. 23 of the Act, the election could not be set aside  on that ground. Rattan  Anmol Singh v. Atma Ram ([1955] 1 S.C.R. 481),  dis- tinguished. Courts should not go by mere technicalities but look to  the substance.  Some rules may be vital, while others are merely directory, and a breach of these may be overlooked, provided there  is  substantial compliance with the rules read  as  a whole and no prejudice ensues.  When the Act does not make a clear  distinction, it is the duty of the court to sort  out one  class  from  the other along  broad  based  commonsense lines. Punjab  Co-operative  Bank  Ltd.,  Amritsar  v.   Income-Tax Office?-, Lahore ([1940] L.R. 67 I.A. 464), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 294 of 1955. Appeal  by special leave from the Judgment and  Order  dated the 7th September, 1955, of the Nagpur High Court, in  Civil

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Revision No. 833 of 1954. B.B. Tawakley, (K.  P. Gupta, with him for the appellant. R.  S. Dabir and R. A. Govind, for respondent No. 1. 1955.   December 2. The Judgment of the Court was  delivered by BOSE  J.-The  appellant was a candidate for  the  office  of President   of  the  Municipal  Committee  of  Damoh.    The respondents  (seven  of  them) were  also  candidates.   The nominations  were  made on forms supplied by  the  Municipal Committee  but  it turned out that the forms were  old  ones that  had not been brought up to date.  Under the old  rules candidates  were required to give their caste, but on  23-7- 1949 this was changed and instead of caste their  occupation had to be entered.  The only person who kept himself abreast of the law was the first respondent.  He struck out the word "caste"  in  the  printed form  and  wrote  in  "occupation" instead  and  then  gave his occupation,  as  the  new  rule required, and not his 1031 caste.   All the other candidates, including the  appellant, filled in their forms as they stood and entered their  caste and  not their occupation.  The first respondent  raised  an objection before the Supervising Officer and contended  that all  the other nominations were s; invalid and claimed  that he  should be elected as his was the only  valid  nomination paper.   The  objection  was  overruled  and  the   election proceeded. The  appellant secured the highest number of votes  and  was declared  to  be elected.  The  first  respondent  thereupon filed the election petition out of which this appeal arises. He  failed in the trial Court.  The learned Judge held  that the  defect  was  not substantial and so held  that  it  was curable.   This was reversed by the High Court on  revision. The learned High Court Judges referred to a decision of this Court in Rattan Anmol Singh v. Atma Ram(1) and held that any failure to comply with any of the provisions set out in  the various rules is fatal and that in such cases the nomination paper must be rejected. We do not think that is right and we deprecate this tendency towards  technicality; it is the substance that  counts  and must  take precedence over mere form.  Some rules are  vital and  go  to the root of the matter: they cannot  be  broken; others  are  only  directory and a breach  of  them  can  be overlooked provided there is substantial compliance with the rules  read as whole and provided no prejudice  ensues;  and when  the legislature does not itself state which  is  which judges  must  determine the matter and,  exercising  a  nice discrimination,  sort  out one class from  the  other  along broad   based,  commonsense  lines.   This   principle   was enunciated  by Viscount Maugham in Punjab Co-operative  Bank Ltd.,  Amritsar  v.  Incometax Officer,  Lahore(2)  and  was quoted by the learned High Court judges-’ "It  is  a  well  settled  general  rule  that  an  absolute enactment  must  be obeyed or fulfilled exactly, but  it  is sufficient  if a directory enactment be obeyed or  fulfilled substantially".  (1) [1955] 1 S.C.R. 481. (2)  [1940] L.R. 07 I.A. 464, 476, 1032 But apart from that, this is to be found in the Act itself. The  learned  High  Court Judges were of  opinion  that  the directions here about the occupation were  mandatory.  That, we think, is wrong. The present matter is governed by section 18 of the  Central Provinces and Berar Municipalities Act (II) of 1922.   Among

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other things, the section empowers the State Government to "make  rules under this Act regulating the  mode............ of election of presidents....."  and section 175(1) directs that "all rules for which provision is made in this Act shall  be made  by the State Government and shall be  consistent  with this Act", Now one of the provisions of the Act, the one that  directly concerns us, is set out in section 23: "Anything done or any proceeding taken under this Act  shall not  be questioned on account of any defect or  irregularity not affecting the merits of the case". The  rules  have therefore to be construed in the  light  of that provision. Rule 9 (1)(i) states that- "   each  candidate  shall.....deliver  to  the  Supervising Officer  a nomination paper completed in the  form  appended and subscribed by the candidate himself as assenting to  the nomination  and by two duly qualified electors  as  proposer and seconder". The amended form requires the candidate to give, among other things,   his   name,  father’s  name,  age,   address   and occupation; and rule 9(1)(iii) directs that the  Supervising Officer "shall  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: *                  *                  *                    * 1o33 (C)  that  there has been any failure to comply with any  of the provisions of clause (i)........." It  was  contended  that  the  word  "may"  which  we   have underlined  above has the force of "shall" in  that  context because clause (a) of the rule reads--- "(a)  that  the candidate is ineligible for  election  under section 14 or section 15 of the Act". It  was argued that if the candidate’s  ineligibility  under those sections is established, then the Supervising  Officer has  no option but to refuse the nomination and it was  said that if that is the force of the word "may" in a case  under clause  (a)  it  cannot be given a  different  meaning  when clause (c) is attracted. We need not stop to consider whether this argument would  be valid  if  section 23 had not been there because  the  rules cannot travel beyond the Act and must be read subject to its provisions.   Reading  rule 9(1) (iii) (c) in the  light  of section  23, all that we have to see is whether an  omission to  set out a candidate’s occupation can be said  to  affect "the  merits of the case".  We are clear it does not.   Take the  case of a man who has no occupation.   What  difference would  it make whether be entered the word "nil"  there,  or struck  out the word "occupation" or placed a  line  against it,  or just left it blank?  How is the case any  different, so  far  as the merits are concerned, when a man who  has  a occupation  does not disclose it or misnames it,  especially as  a man’s occupation is not one of the qualifications  for the office of President.  We are clear that this part of the form is only directory and is part of the description of the candidate;, it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt. It was also argued that there was a reason for requiring the occupation  to be stated, namely, because section  15(k)  of

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the  Act  disqualified any person who "holds any  office  of profit"   under   the  Committee.   But  disclosure   of   a candidate’s  occupation  would not necessarily  reveal  this because the occupation need only be stated in general  terms such as "service" or 1034 "agriculture"  and need not be particularised; also, in  any ’event,   section  15  sets  out  other  grounds   of   dis- qualification  which  are not required to be  shown  in  the form. As  regards our earlier decision.  That was a case in  which the  law required the satisfaction of a particular  official at  a  particular time about the identity of  an  illiterate candidate.   That,  we held, was the substance and  said  in effect that if the law states that A must be satisfied about a particular matter, A’s satisfaction cannot be replaced  by that  of B; still less can it be dispensed with  altogether. The  law we were dealing with there also required  that  the satisfaction  should  be endorsed on the  nomination  paper. That we indicated was mere form and said at page 488-- "If  the  Returning  Officer  had  omitted  the  attestation because of some slip on his part and it could be proved that he  was  satisfied at the proper time, the matter  might  be different  because  the element of his satisfaction  at  the proper time, which is of the substance, would be there,  and the  omission  formally  to record  the  satisfaction  could probably,   in  a  case  like  that,  be  regarded   as   an unsubstantial technicality". A  number of English cases were cited before us but it  will be  idle to examine them because we are concerned  with  the terms  of  section  23  of our Act  and  we  can  derive  no assistance from decisions that deal with other laws made  in other  countries  to  deal  with  situations  that  do   not necessarily arise in India. The  appeal succeeds and is allowed with costs here  and  in the  High Court.  The order of the High Court is  set  aside and that of the Civil Judge restored. 1035