M.P. Thakkar, J.
1. Whether Rule 8 of Gujarat Municipalities Election Rules, 1964, requiring that 'the nomination papers shall be delivered by the nominators personally to the Returning Officer' is mandatory or directory? If the nomination papers at a Municipal Election are received by the Returning Officer without challenge or demur and if the election of the successful candidate is subsequently questioned on the ground that the nomination papers ought to have been lodged by the hand of the nominator and not that of the candidate himself, can the election be set aside? These are the two questions raised in these petitions under Articles 226 and 227 of the Constitution of India, both of which arise out of Election Petition No. 1 of 1965, decided by the learned District Judge of Amreli on June 30, 1967 who allowed the petition and set aside the election of the successful candidates.
2. The dispute relates to the election of Municipal Councilors under the Gujarat Municipalities Act, 1963 and the Election Rules framed thereunder (hereinafter referred to as the Act and the Election Rules respectively) held on September 5, 1965 in respect of Manekpara Ward, Ward No. 9, of Amreli. As common questions of facts and law arise both the petitions will be disposed of by this common judgment. The facts leading to these petitions, stated briefly and to the necessary extent, are as follows:
3. The Collector of Amreli had notified August 16 to 18 as the days for submitting the nomination papers. The petitioners in both the petitions had lodged their nomination papers within the specified time. By whose hand these nomination papers were presented is in serious dispute. The returning officer received the nomination papers without any demur. Neither the rival candidates nor any one else, challenged the act of presentation as wanting in legality or regularity on that day. On August 19, 1965, which was the date of scrutiny, an objection was raised by respondent Nos. 1 and 2, the candidates who were the rivals of the petitioners, questioning the validity of the filing of the nomination papers of the petitioners. The objection was grounded on the allegation that the nomination papers were presented by the candidates themselves (i.e. the petitioners) and not by the nominators as required by Rule 8 of the Election Rules. No evidence appears to have been adduced before him, and the Returning Officer, who himself had received the nomination papers, passed an order (which was unfortunately not a speaking order) rejecting the objections. Polling took place on September 5, 1965 and on the next day, September 6, 1965, the petitioners were declared as duly elected. Thereupon respondents Nos. 1 and 2, the defeated candidates, instituted Election Petition No. 1 of 1965 in the Court of the District Judge, Amreli, challenging the legality and validity of the election on various grounds. Only one of these grounds namely the ground that the returning officer had illegally and wrongly accepted the nomination papers of the successful candidates (petitioners), is relevant for the present purposes. The basis of this challenge was (1) the premise that it was a mandatory requirement of Rule 8 that the nomination paper should be submitted personally by the hand of the nominator and the presentation at the hand of the candidate himself was illegal and invalid and (2) the factual allegation that the presentation had been made by the candidate himself. Before the learned District Judge the petitioners as also the returning officer contended that the relevant nomination papers were in fact presented by the nominators and not by the candidates as alleged. The learned District Judge recorded a mass of evidence. He disbelieved the testimony on oath of the returning officer, as well as that of the successful candidates, to the effect that the nomination papers were lodged by the hand of the nominator concerned. He accepted the testimony of the defeated candidates and others and recorded a finding upholding the allegation of the unsuccessful candidates, respondents Nos. 1 and 2, that the nomination papers were lodged by the candidates themselves (petitioners) and not by their respective nominators. It would not be open to this Court, exercising jurisdiction under Articles 226 and 227, to examine the evidence afresh and to re-examine this issue of fact. For the purposes of these petitions we must, therefore, proceed on the assumption that the nomination papers of the successful candidates, the petitioners before us, were presented to the Returning Officer by their own hands and not at the hands of their respective nominators. The question then is whether this fact, in the circumstances of the present case, renders their election invalid as has bee' held by learned District Judge upon taking the view that the relevant requirement contained in Rule 8 of the Election Rules is mandatory and not directory. And it may be stated that the said question is the sole question debated before us, the petitioners not having pressed the numerous other points (which we need not unnecessarily set out) raised by them in these petitions.
3. 'What', the question may be asked 'are the fundamental principles, in the light of which the problem requires to be approached'? We propose to examine this question before undertaking the task of resolving the two questions namely whether the requirement contained in Rule 8 of the Elections Rules is mandatory or directory and whether the Election deserves to be set aside.
4. Election, it must be realised, is the machinery devised to mirror the true wishes and the will of the people in the matter of choosing their representatives who are supposed to echo their views and represent their interests in the democratic legislature. The results of the Election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the 'true' will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the 'true will' is ascertained the Courts will step in to protect and safeguard the purity of Elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on an essential matter, the will of the people as recorded in their votes is not the 'free' and 'true' will exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all. And the Courts would, therefore, it stands to reason, be justified in setting aside the election in accordance with law if the corrupt practices are established. So also when the essential qualifications for eligibility demanded by the constitutional requirements are not fulfilled, the fact that the successful candidate is the true choice of the people is a consideration which is totally irrelevant. The approach of the Courts, however, in cases where the eligibility, or qualifications of the candidates are not questioned and where the fountain of the will of the people is not polluted by any corrupt practices, fraud, or deception, cannot be the same. Because of three reasons. First, the will of the people that is material at the point of time of the election in question can never be repeated and reascertained. The electorate is a fluctuating body. Some of those who voted may not be alive to vote any more. Those who were then under age from the point of right to vote and ineligible to vote would have subsequently acquired the right to vote. Some might have migrated. It would, therefore, be impossible to re-enact the elections and reascertain the wishes of the people at the point of time of the earlier elections at a future date. This is a strong reason which would justify exercise of restraint in the matter of setting aside the election when it is questioned on grounds which do not touch the essential factor of purity and eligibility. Coming to the next consideration, elections involve considerable expenditure of public revenue (not to speak of private funds) and result in great inconvenience and loss of public time. There would be good reason therefore for not setting at naught the election which reflects the true will of the people for some non-essential failures or defects. This is the second vital consideration. And, lastly, we come to an important factor which cannot be ignored by the Courts altogether, namely the consideration regarding the utility, purpose and value of setting aside the election. What is the purpose of setting aside an election, if the will of the people has been freely, truly, and intelligently exercised and recorded in the result? In matters of election the will of the people must prevail and Courts would be understandably extremely reluctant to set at naught the will of the people truly, freely, and intelligently exercised. If Courts were to do otherwise, the Courts would be pitting their will against the will of the people, or countermanding the choice of the people without any object, aim or purpose. And the Courts will not do anything in vain. Apart from public expenditure and inconvenience, the frustration of the people will also have to be taken into account. Every decision rendered by the Court takes the place of a brick in the edifice of its public image. And the Court would be slow to so act that the common man with the common sense at his command is shaken in his faith for the judicial machinery which has to strike the balance between competing interests and resolve the conflicts with the end in view to subserve the interests of the society at large. Since the principal object of the control exercised by the Courts is to secure free, true, and intelligent exercise of the will of the people in the matter of elections, and to secure that only persons holding eligible qualifications secure the representation, the Courts would not be overanxious to step in where the violation complained of in an election petition is of a non-essential or technical character. 'Generally', Sutherland observes in Statutory Construction 3rd edition para 8820 relying on a line of American Cases 'provisions will be held directory so as not to thwart the will of the voters as expressed at an election.' And this principle is also echoed in Pratap Singh v. Shri Krishna Gupta and Ors. : 2SCR1029 wherein the Supreme Court has pronounced '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 over-looked provided there is substantial compliance with the rules read as a 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 v. Income-tax 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.
5. So much about the general approach. Returning to the question at hand, Rule 8(1) which is under scrutiny may now be quoted. It provides that no person may be a candidate for a councillorship unless 'nominated in writing for the purpose by two persons entitled to vote in the ward to which he wishes to be elected. The nomination paper shall be in Form 'A'. Clause (2) of Rule 8 runs as follows:
(2) On receiving a nomination paper under Sub-rule (1) the Returning officer shall enter in it its serial number and shall sign thereon a certificate stating the date on which and exact time at which the nomination paper was delivered to him.
The problem posed is whether the requirement that the nomination paper shall be delivered by the nominators personally to the Returning Officer is mandatory in the sense that it invalidates the election if the nomination paper is delivered to the Returning Officer all right, but subsequently it is alleged by the rival candidate that the hand which delivered it to the returning officer was not the hand of the nominator but that of the candidate himself. Now upon an analysis of Rule 8 it is evident that it prescribes two essential pre-conditions for the validity of the nomination paper. First, that the nomination must be in writing and must be made by two persons entitled to vote in the ward of contest. Second, the nomination paper in Form A shall bear an endorsement signed by the nominee signifying his willingness to serve as a Councilor. The insistence on the nomination paper being in writing is presumably to eschew fraud. So also the requirement regarding the nomination being made by two persons entitled to vote belonging to the very ward of contest has its eye on prevention of any fraud. The endorsement of the nominee under his signature is insisted upon to secure that the candidate is a willing candidate and he is not being nominated against his wish. These requirements by their very nature are of an essential character having regard to the obvious object underlying the insistence in this behalf. And the test is to be found in Rule 10(2) relating to scrutiny which provides that the nomination paper may be rejected on any of the following grounds:
(i) A candidate being disqualified or not qualified under the Act or these rules for election;
(ii) nominator not being qualified to nominate the candidate;
(iii) failure to comply with any of the provisions prescribed by these rules or the Act;
(iv) a candidate, proposed or seconder not being identical with the person whose electoral number is specified in the nomination paper as the number of such candidate, proposed or seconder, as the case may be;
(v) the signature of the candidate, or of the proposed or seconder not being genuine or having been obtained by fraud.
Non-compliance with both the aforesaid requirements of Rule 8 regarding the nominators being qualified to nominate, and their signatures and the signature of the nominee being genuine, have in terms been made grounds for rejecting the nomination papers (see Rule 10(2)(ii), (iv) and (v)). These requirements are, therefore, obviously essential and mandatory. What about the presentation of the nomination paper however? Is it the essence of the requirement of Rule 8 and is it mandatory that it must be presented by the hand of the nominator so that the alleged presentation by the candidate himself will serve to invalidate the election and set at naught the will of the people freely expressed? Nothing is to be found in the rule to hold that it is so. It is a relevant question to pose what is the purpose and object of this requirement, for, often whether it is mandatory or directory depends more on the purpose of the rule rather than on its language (See American Jurisprudence Volume 50 para 24 page 48 note 5). The purpose of the requirement seems to be this (and no more) that some one directly connected with the nomination does it himself and does not leave it to someone else lest the nomination paper may not be presented within the prescribed time. The only anxiety is to secure that the right to contest is not lost by delegating the task to someone not so intimately connected with the contest. The emphasis is not placed on the hand which delivers it. There is no purpose or point in insisting that the nominator himself should do it and not the candidate. That even in National elections there is no such insistence is another pointer to this conclusion. Under Section 33 of the Representation of the People Act, 1951 the nomination paper can be presented by the candidate or by his proposed: not necessarily by the proposed. Again; it cannot be lost sight of that failure to present it by the nominator is not specifically made a ground for rejecting the nomination paper (see Rule 11(2) quoted earlier). If it was the essence of the requirement of presentation that the nominator himself must do it (it is difficult to comprehend 'why' it should be so) provision would have been made in Rule 10(2) in this behalf and non-compliance would have been made fatal. If this is viewed in juxtaposition with the fact that in regard to qualifications to contest and nominate and the signatures of candidates and nominators, non-compliance has been made a fatal ground in Rule 10(2), the point sought to be emphasized will become still more clear. As regards the aforesaid requirements the reason for making compliance therewith essential is to safeguard against fraud. In the present context nothing turns on as to whose hand actually presents the nomination paper. Form 'A' which is the statutory form for nomination papers also lends support to this view. While it contains a column for the specification of the electoral numbers of the candidate and his nominators, and it requires them to append their signatures, there is no column regarding the identity of the person presenting the nomination paper. The point is that on an examination of the nomination paper itself there exists a record as regards the requirement considered essential so that if it is questioned at the time of scrutiny under Rule 10, the objection is capable of verification. When there is no record as to who presented the paper, how can it be verified (if challenged) at the time of scrutiny? If it was considered essential, the name of the presenting party would have been required to be recorded so as to make it possible to verify it. Surely the returning officer is not expected to carry in his head the information as to who presented each of the nomination paper (and there may be hundreds of nomination papers filed) and to decide the objections two or three days later on the date of scrutiny? To expect him to do so would be to expect the impossible from the returning officer. Since the rules do not require any contemporaneous record of the identity of the person presenting the nomination paper made, and does not require the verification of the identity of such person at the very point of time of presentation, it would be impossible for the returning officer to verify or certify who had presented the nomination paper. It would be extremely unsafe to make the matter depend solely on the impression or memory of the returning officer or on the easily procurable testimony of witnesses on either side. Since there is no object of preventing fraud and since it is not the essence of the requirement as to whose hand presents the nomination paper, and since there is no machinery to verify it, the reasonable conclusion which emerges is that the requirement is directory and not mandatory. It has been urged by the learned Counsel for the respondents that the requirement in question is mandatory inasmuch as Rule 10(2)(iii) provides that 'failure to comply with any of the provisions prescribed by these rules or the Act' shall entitle rejection of the nomination paper. We cannot accede to this argument because Rule 10(2)(iii) is 'general' in character. It is not possible to read into this rule a provision intended to penalise non-compliance with a non-essential requirement like the one before us. It would have been a different matter if a specific provision had been made as has been done in the case of qualifications and signatures of the nominators and the candidate, (See Rule 10(2)(i)(ii) and (iv)) which aspect we have dealt with a short while ago. In the result we are inclined to hold that the said requirement is 'directory' in character and not 'mandatory'. Noncompliance thereof will be an irregularity and not an illegality rendering the election void. This must be so because it is well recognized that provisions which are not material or do not affect any substantial right and do not relate to the 'essence' of the thing to be done are construed as being directory (American Jurisprudence Vol. 50 paragraph 24 page 48 notes 9, 0, 11, 12, 13). So also there is good authority for the proposition that irregularities will not render an election void. The law on the point is stated in the following manner in American Jurisprudence 2nd Ed. Vol. 25 at page 142.
As a general rule, unless the statute expressly declares that the particular act in question is essential to the validity of the election or that its omission shall render the election void, statutory provisions in regard to nominations are not regarded as mandatory in the sense that non-compliance with them vitiates the election, but only in the sense that officers or persons to whom they apply are obligated and may be compelled to comply with them prior to an election and are subject to the penalties prescribed-by the statutes relating to offences against election laws. In determining how far irregularities in party nomination for office will affect the result of the general election, the fundamental inquiry is whether the irregularity complained of has prevented a full, fair, and free expression of the public will. An election in which the voters have fully, fairly, and honestly expressed their will is not invalid even though a wrong method is followed in the nomination of candidates and their names are improperly printed on the official ballot.
6. In our opinion, therefore, while the returning officer can refuse to receive a nomination paper if it is not presented by the nominator himself, once it is accepted without demur at the time of presentation and the election is gone through, the successful candidate will not be unseated and the election will not be declared void, (setting at naught the free will of the people expressed through the ballot box) on account of any irregularity arising from presentation of the nomination paper by the candidate himself instead of by the nominators. It would be merely an irregularity not having the effect of rendering the election void.
7. These petitions must accordingly succeed. The order passed by the learned District Judge of Amreli in Election Petition No. 1 of 1965, setting aside the election of Ward No. 9, Manek Para Ward, of Amreli Municipality is hereby quashed and set aside. Rule is made absolute. In the peculiar circumstances of the case, there will be no order as to costs in each petition.