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 second