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
BB Tawakley K P Gupta with him for the appellant
R section 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 vs Atma Ram1 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 vs Incometax Officer Lahore2 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  2 1940 LR 07 IA 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 1751 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 1i 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 91iii 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 91 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 15k 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 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


Summary:
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 section 23 of the Act the election could not be set aside on that ground
Rattan Anmol Singh vs Atma Ram 1955 1 SCR 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 vs Income Tax Office  Lahore 1940 LR 67 IA 464 referred to