ThaiaalaOllU v. Th• SIDie of T rav1111&0t1-Cochin

f). SHRI KRISHNA GUPTA AND OTHERS. [S. R. DAs, ACTING C. J., V1v1AN BosE. BHAGWATI, fAGANNADHADAS and B. P. SINHA JJ.] Jilt!ction Dispute-Rule requiring candidate to state occupati-:m in nomination paper-If mandatory in character-Duty of Court Central Provinces and Berar Municipalities Act (II) of 1952, ss. 9(1) (iii) (c), 23. The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an o\d 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 Elec substantial and tion Tribunal which held that the defect was not reversed this decision in was curable. The High Court, however, revision, holding that failure to comply with any of the provisions set out in the rules was fatal and in such cases the nomination papct should be rejected. 1030 SUPREME COURT REPORTS [1955] 1955 ' T"4Tcur PraJap Singh v. Shri Krishna Gupta ond otkrs Held, that the rule requiring the occupation of the candidate to be st.ated in the nomination form was directory an<l 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 <iside on that ground. Rattan Anmol Singh v. Atma Ram ([1955] I S.C.R. 481 ), dis· tinguished. Courts should not go by mere technicalities but look to the ~ub­ stance. Some rules may be vital, while others are merely directory, and a breach of thtle may be overlooked, provided there is sub stantial compliance \Vith the rules read as a whole and no prejudice ensues. When the Act does not n1ake 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 '" lnconle-Tax Officer, Lahore ([1940] L.R. 67 I.A. 464), referred to. C1v1L APPELLATE juRISDICTION :. Civil Appeal No. 294 of 1955. Appeal by special leave f udgment and from the the 7th September, f955, of the Nagpur Order dated High Court, in Civil Revision No. 833 of 1954. B. B. Tawakley, (K. P. Gupta, with him) appellant. R. S. Dabir and R. A. Govind, respondent No. 1.

#1955. December

#2. The Judgment Court was delivered by the Municipal Committee but BosE J.-The appellant was a candidate office of President of Dam oh. The respondents candidates. The nominations were made on supplied by brought up to date. Under to give this was changed and instead of caste tion had himself abreast of the He struck out and wrote in "occupation" occupation, as the Municipal Committee of (seven of them) were also turned the forms were old ones that had not been the old rules candidates their caste, but on 23-7-1949 their occupa to be entered. The only person who kept first . respondent. in the printed form instead and then gave his required, and not his the word "caste" law was th" new required 2S.C.R. SUPREME COURT REPORTS 1031 including in their forms as the appel caste. All the other candidates, lant, filled they stood and entered their caste and not their occupation. The first respon dent raised an objection before the Supervising Officer the other nomi11ations were and contended that he should be elected as his invalid and claimed was the only valid nomination paper. The objection was overruled and the election proceeded. that all 1955 Thakur Pratap Singh v, Shri Krishna Guptt1 and othtrs Bose J. in the The appellant secured the highest number of votes respondent and was declared to be elected. The first the election petition uut of which thereupon trial Court. The this appeal arises. He failed the defect was not learned Judge held stantial and so held it was curable. This was reversed by the High Court on revision. The learned referred to a decision of this Court High Court Judges in Rattan Anmol Singh v. Atma Ram(') and held that to comply with any of the provisions set any failure in such cases the nomination paper must be rejected. fatal and that the various Some tendency substantial rules are vital and go to the We do not think towards that counts · and must that is right and we deprecate technicality ; take precedence over stance mere form. of the matter : they cannot be broken ; others are only them can be overlooked directory and a breach of compliance with provided rules read as whole and provided no prejudice ensues ; itself state which legislature does not and when the matter and, exer is which cising a nice discrimination, sort out one class from lines. This the other along broad based, commonsense principle was enunciated by Vi~count Maugham Puniab Co-operative Bank Ltd., Amritsar v. lncome tax Officer, Lahore(") and was quoted by the learned High Court Judges: judges must determine "It sufficient is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it if a directory enactment be obeyed or fulfilled substantially". (1) [ 955) I S.C.R.481. (2) [ 940) L. R. 67 I. A. 464, 476. 1955 T""""' l'Ntap S/wl If"'""" Gupt4 SiqA v. ""' 0"'61 S-J. 1032 SUPREME COURT REPORTS {J.9'j5) But apart from that, 'this is to be found in the Act itself. The learned High Court Judges were of opinion the directions here about the occupation were mandatory. That, we think, is wrong. The present matter Central Provinces and Berar Municipalities Act of 1922. Among other the State Government to is governed by section 18 of the (II) the section empowers things,, "make rules under this Act regulating the mode ........ of election of presidents ........ " and section 175 (1) directs that "all rules Act shall be made by the State Government and shall be consistent with this Act". for which provision is made in 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 of that provision. to be construed in the Rule 9(1)(i) states that- " ........ each candidate shall .......... deliver to the Supervising Officer a nomination paper completed in the f'prm appended and subscribed by the candidate himself as assenting duly qualified electors as proposer and seconder". The amended form among other address an<l occupation ; and that the Supervising Officer. to give, father's name, age, rule 9(1) (iii) directs to the nomination and by things, his name, the candidate requires "shall examine the nomination papers and decide all objections which may be made to any nomi nation and may either on such objection or on his if any, as own motion, after such summary enquiry, refuse any nomination on any thinks necessary, of the following grounds : • • • •

25.C.R. SUPREME COURT REPORTS 1033 (c) that there has been any with any of the provisions of clause (i) ...... ". It was contended have underlined above has that context because clause (a) of the rule reads- the word "may" which we force of "shall" to comply failure 1955 T""""1 Pralap Singli v. S/irl Krisluta GuJi. and olbers " (a) that the candidate is ineligible for election Bos1 J. sections the candidate's that , if under section 14 or section 15 of the Act". It was argued vising Officer has no option but to refuse nation and it was said word "may" be given a different meaning when clause attracted. ineligibility established, then the Super the nomi the force of the it cannot ( c) that if that is in a case under clause (a) (c) We need not stop to consider whether cannot travel beyond its provisions. Reading this argu if section 23 had not been there ment would be valid the Act and because must be read ·subject in the light of section 23, all that we have 9(1) (iii) to set out a candidate's to see is whether an. omission occupation can be said to affect "the merits of case". We are clear it does not. Take the case of a man who has no occupation. What difference would the word "nil" there, or it make whether he entered "occupation" or placed a struck out the W'>rd it blanks ? How is the case any against it, or just left the merits are concerned, when a different, so far as man who has a occupation does not disclose it or misnames it, especially the office of Presi not one of the qualifications for dent. We are clear that this part of the form is only directory and is part of the description of the candi date ; it does not go to the root of the matter so long to enable there is enough material him to be identified beyond doubt. a man's occupation the paper the occupation It was also argued that there was a reason to be stated, namely, because quiring 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 the occupation need necessarily terms such as "service" or only be stated this because in general reveal 1955 Thakur ITatap Singh v. Shri Krishna Gupta and othns Bose J. 1034 -SUPREME COURT REPORTS [1955} "agriculture" and need not be particularised ; also, any event, section 15 sets out other grounds of dis qualification which are not required the form. to be shown As regards our earlier decision. That was a case in which the law required the satisfaction oI a parti cular official at a particular time about identity of an illiterate candidate. That, we held, was law states in effect substance and said 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 that the satis were dealing with faction should be endorsed on the nomination paper. That we indicated was mere form and said at page 488- there also required omitted slip on his part and "If the Returning Officer the matter might be different because attestation because of some could be proved that he was satisfied at the proper time, element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality". record A number of English cases were cited before us them because we are section 23 of our Act to deal but it will be concerned with and we can derive no assistance deal with other with situations that do not necessarily arise in India. to examine terms of in other countries from decisions laws made 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.