Thakur Pratap Singh Vs. Shri Krishna
Gupta & Ors [1952] INSC 60 (2 December 1952)
ACT:
Election Dispute-Rule requiring candidate to
state occupation in nomination paper-If mandatory in characterDuty 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), distinguished.
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.
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
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 23-71949 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 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 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 disqualification
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.
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