# ThaiaalaOllU EwfirwotM V amd v. Th• SIDie of T rav1111&0t1-Cochin

- **Citation:** [1955] 2 S.C.R. 1029
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** S. R. DAs, Acting C. J, V1v1AN BosE. BHAGWATI, fAGANNADHADAS, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thaiaalaollu-ewfirwotm-v-amd-v-th-sidie-of-t-rav1111-0t1-cochin-1229
- **Pages:** 6

## Headnote

Jilt!ction Dispute-Rule requiring candidate to state occupati-:m
in nomination paper-If mandatory in character-Duty of CourtCentral 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 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 papct
should be rejected.
1955
ThaiaalaOllU
EwfirwotM V amd
v.
Th• SIDie of
T rav1111&0t1-Cochin
]opullldhad1J1 J.
1955
Decem6'r 2.
1955 '
T"4Tcur PraJap
Singh
v.
Shri Krishna Gupta
ond otkrs
1030
SUPREME COURT REPORTS
[1955]
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 substantial 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
No. 294 of 1955.
juRISDICTION :.
Civil
Appeal
Appeal by special leave
from the
f udgment and
Order dated the 7th September, f955, 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

## Text

2S.C.R.
SUPREME COURT REPORTS
1029
power of pardon thereunder is different from "personal rights, privileges and dignities" which have been
dealt with under articles XVI and XVII in the following terms.
"XVI. The Ruler of each
Covenanting State,
as also the members of his family, shall be entitled
to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day
of August, 1947.
XVII. ( 1) The succession, according to law and
custom to the gaddi of each Covenanting State and
to the personal rights, privileges, dignities and titles
of the Ruler thereof is hereby guaranteed".
There is thus no substance in any of the arguments
on which the ca~ for the appellant can possibly be
presented.
This appeal is accordingly dismissed.
THAKUR PRAT AP SINGH
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 CourtCentral 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 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 papct
should be rejected.
1955
ThaiaalaOllU
EwfirwotM V amd
v.
Th• SIDie of
T rav1111&0t1-Cochin
]opullldhad1J1 J.
1955
Decem6'r 2.
1955 '
T"4Tcur PraJap
Singh
v.
Shri Krishna Gupta
ond otkrs
1030
SUPREME COURT REPORTS
[1955]
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 substantial 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
No. 294 of 1955.
juRISDICTION :.
Civil
Appeal
Appeal by special leave
from the
f udgment and
Order dated the 7th September, f955, 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
Dam oh. 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 th" new rule required, and not his
2S.C.R.
SUPREME COURT REPORTS
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 nomi11ations 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.
The appellant secured the highest number of votes
and was declared to be
elected. The first
respondent
thereupon filed the election petition uut 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(') 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
Vi~count Maugham in
Puniab
Co-operative Bank Ltd., Amritsar v. lncometax Officer, Lahore(") 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) [ 955) I S.C.R.481.
(2) [ 940) L. R. 67 I. A. 464, 476.
1955
Thakur Pratap
Singh
v,
Shri Krishna Guptt1
and othtrs
Bose J.
1955
T""""' l'Ntap
SiqA
v.
S/wl If"'""" Gupt4
""' 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
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 f'prm 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 an<l 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 :
•
•
•
•
25.C.R.
SUPREME COURT REPORTS
1033
(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 he entered the word "nil" there, or
struck out the W'>rd
"occupation" or placed
a line
against it, or just left it blanks ? 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
1955
T""""1 Pralap
Singli
v.
S/irl Krisluta GuJi.
and olbers
Bos1 J.
1955
Thakur ITatap
Singh
v.
Shri Krishna Gupta
and othns
Bose J.
1034
-SUPREME COURT REPORTS
[1955}
"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
oI 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.