1955 JTR(SC) 112
1956 AIR(SC) 140 ; 1956 SCA 366 ; 1956 SCJ 143 ; 1955 2 SCR 1029 ; 1956 KHC 381 ; 1955 KLT(Online) 1050
SUPREME COURT OF INDIA
2nd December 1955
S.R. DAS, ACTG. C.J.I., BOSE, BHAGWATI, JAGANNADHA DAS AND SINHA, JJ.
Pratap Singh, Appellant
Versus
Shri Krishna Gupta and others, Respondents.
Civil Appeal No. 294 of 1955,
Advocates appeared
Mr. B.B. Tawakley, Senior Advocate (Mr. K. P. Gupta, Advocate with him), for Appellant; Mr. : R. S. Dabir and Mr. R. A. Govind, Advocates, for Respondent No. 1.
Act Referred :CENTRAL PROVINCES AND BERAR MUNICIPALITIES ACT : S.18, S.15, S.28, S.175(1)
Statutes-Mandatory and directory provisions. See under "Municipalities" post.-C.P. Berar Municipalities Act (II of 1912), Sections 15, 18, 23, 175(1) and Rules under Section 18-Rule 9-Whether man to directory Interpretation.
Foreign Decisions as precedents-Their value.
The appellant was a candidate for the office of President of the Municipal Committee of Damoh. The respondents 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 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 caste. All the other candidates, including the appellant filled in their forms as they stood and entered their caste and not their occupation. Objection of the first respondent to the validity of the other nominations was overruled by the Supervising Officer, 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. He failed in the trial court, it being held that the defect was not substantial and was curable. The High Court reversed it on revision holding that any failure to comply with any of the provisions set out in the various rules is fatal and in such cases the nomination paper must be rejected.
Held (allowing the appeal): (1) Tendency towards technicality must be deprecated. It is 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 ensures; 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.1
(2) 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 232, all that is to be seen is whether an omission to set out a candidates occupation can be said to affect "the merits of the case." It does not. 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. Disclosure of a candidates occupation would not necessarily, reveal that he holds any office of profit under the committee.3
1.Punjab Co-operative Bank Ltd. Amritsar v. Income-tax Officer, Lahore, A.I.R. 1940 P.C. 230, 233 referred to.
2.Section 23 of the Act reads: "Anything done or proceeping taken under thi5 Act shall not be questioned on account of any defect or irregularity not affecting the merits of the case."
3. Rattan Anmol Singh v. Alma Ram, (1955) IS.C.R. 481: A.I.R. 1954 S.C. 510 distinguished.
(3) The court 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. - Precedents-Foreign Decisions.
Held: The Court can derive no assistance from decisions that deal with other law made in other countries to deal with situations that do not necessarily arise in India.
Foreign Decisions as precedents-Their value.
The appellant was a candidate for the office of President of the Municipal Committee of Damoh. The respondents 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 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 caste. All the other candidates, including the appellant filled in their forms as they stood and entered their caste and not their occupation. Objection of the first respondent to the validity of the other nominations was overruled by the Supervising Officer, 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. He failed in the trial court, it being held that the defect was not substantial and was curable. The High Court reversed it on revision holding that any failure to comply with any of the provisions set out in the various rules is fatal and in such cases the nomination paper must be rejected.
Held (allowing the appeal): (1) Tendency towards technicality must be deprecated. It is 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 ensures; 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.1
(2) 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 232, all that is to be seen is whether an omission to set out a candidates occupation can be said to affect "the merits of the case." It does not. 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. Disclosure of a candidates occupation would not necessarily, reveal that he holds any office of profit under the committee.3
1.Punjab Co-operative Bank Ltd. Amritsar v. Income-tax Officer, Lahore, A.I.R. 1940 P.C. 230, 233 referred to.
2.Section 23 of the Act reads: "Anything done or proceeping taken under thi5 Act shall not be questioned on account of any defect or irregularity not affecting the merits of the case."
3. Rattan Anmol Singh v. Alma Ram, (1955) IS.C.R. 481: A.I.R. 1954 S.C. 510 distinguished.
(3) The court 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. - Precedents-Foreign Decisions.
Held: The Court can derive no assistance from decisions that deal with other law made in other countries to deal with situations that do not necessarily arise in India.
B.B.TAVAKLEY, K.P.GUPTA, R.A.GOVIND, R.S.DABIR
Judgement
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 caste. All the other candidates, including the appellant, filed 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 invalid and claimed that he should be elected as his was the only valid nomination paper. The objection was overruled and the election proceeded.
2. 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 revered 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 , AIR 1954 SC 510 (A) 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.
3. 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 ensures; 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. Income-tax Officer, Lahore , AIR 1940 PC 230 at p. 233 (B) and was quoted by the learned High Court Judges :
"It is 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."
4. But part from that, this is to be found in the Act itself.
5. The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong.
6. The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (11) 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."
7. Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23 :
"Anything done or any proceedings 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.
8. Rules 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 propose 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 :
* * *
(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 candidates 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.
9. 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 he 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.
10. 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 "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.
11. 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 abut a particular matter, A s satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether. The law we are dealing with there also required that the satisfaction should be endorsed on the nomination paper. That we indicated was mere form and said at p. 513 -
"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 elements 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 .
12. 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 an derive no assistance from decision that deal with other laws made in other countries to deal with situations that do not necessarily arise in India.
13. 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.
Appeal allowed.
For Citation : AIR 1956 SC 140
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