D.M. Rudraiah vs Registrar, University of Mysore and Others

In this writ petition under Articles 226 and 227 of the Constitution, the petitioner has challenged the validity of the order dated 21-7-1980 passed by the Registrar of the University of Mysore, rejecting the nomination paper filed by the petitioner for election to the Senate of the University of Mysore, from the constituency of the Registered Graduates in Law. Registrar is also the Returning Officer for the conduct of Elections.

The nomination paper of the petitioner has been rejected on the ground that it was not dated as per Statute 13 (1) of the University of Mysore Statutes Relating To Elections To The Authorities of the University (hereinafter referred to as ''the Statute'').

It is not in dispute that the nomination paper in question was filed by the petitioner within the date and time fixed by the calendar of events for receipt of the nominations. It is also not in dispute that it satisfies all other requirements except the date. Under these circumstances, the only question that arises for consideration is as to whether the rejection of the nomination paper on the ground that it did not contain the date can be said to be valid or in other words, whether the nomination paper presented in time satisfying all the requirements except the date, can be said to be invalid.

The learned Counsel for the petitioner submitted that the requirement of putting the date on the nomination paper as long as the same was filed within time, became a formal thing inasmuch as the date of filing the nomination paper can also be regarded as the date of the nomination paper which is not dated, and as such, failure to put the date did not in any way affect the validity of the nomination paper; consequently, it did not vitiate the nomination paper. Therefore, it was contended that the Registrar was not justified in rejecting the nomination paper. In support of this contention, the learned Counsel relied upon a decision of this Court in the case of Venkataramanappa v. State of Karnataka (1979) 1 Kar LJ 214 : AIR 1978 NOC 262. On the contrary, Sri V. Tarakaram, the learned counsel for respondents 1 & 2, submitted that the order passed by the Registrar rejecting the nomination paper of the petitioner accords with Statute 13 of the Statutes and as such, it is not liable to be interfered with. The learned counsel further submitted that the requirement of putting the date on the nomination paper is one of the mandatory requirements of the Statute and failure to put the date did vitiate the nomination paper and as such, the Registrar had no option but to reject the nomination paper. The contentions put forth by Sri V. Tarakaram on behalf of respondents 1 and 2 were adopted by Sri Udayashankar, the learned counsel for respondent No. 3. However, Sri Chandrashekharaiah, the learned counsel for respondent No. 4, further contended that the very form of the nomination paper prescribed by the Vice-Chancellor does not accord with Statute 13 of the Statutes. However, it is not necessary to consider the contention of Sri Chandrashekharaiah as it is not necessary for the purpose of deciding the question raised for decision in the writ petition.

Statute 13 reads as follows:-

"Nomination of candidates:

Nomination papers shall be in the form prescribed by the Vice-Chancellor and shall be dated and signed by two electors one of whom shall be the proposer and the other the seconder and shall contain the names in full, addresses and designations of the signatories and of the candidate nominated. No person shall be nominated as a candidate for election until he signifies his consent on the nomination Paper.

The nomination Paper should reach the Returning officer before the date and time fixed for the purpose. Any nomination paper which is received after the date and time fixed or which is not accompanied by the deposit receipt referred to in St. 14 or which does not comply with any of the formalities required by the Statutes shall be rejected."

An analysis of clause (1) of Statute 13 shows that a nomination paper: - (1) must be in the form prescribed by the Vice-Chancellor; (2) must be signed by two electors, one of whom shall be the proposer and the other the seconder; (3) must also contain full name of the proposer and the seconder with address and the designation of each of them; (4) must contain the full name and address and designation of the candidate; (5) must also be signed by the candidate to signify his consent; (6) the statute further provides that it shall also be dated.

Clause (2) of Statute 13, further provides that the nomination paper should reach the Returning Officer before the expiry of the date and time fixed for the purpose. Clause (2) further states the circumstances under which a nomination paper is liable to be rejected. According to this clause, a nomination paper shall be rejected - (1) if it is received after the date and time fixed for the purpose; or (2) if it is not accompanied by the deposit receipt for having deposited a sum of Rs. 100/- as required by Statute 14; or (3) if it does not comply with any of the formalities required by the Statutes.

Sri Tarakaram relied upon the last portion of clause (2) of Statute 13, and contended that putting the date on the nomination paper being one of the formalities required to be complied with and non-compliance of such a formality, did render the nomination paper of the petitioner liable for rejection. Accordingly, the Registrar had no option but to reject the same. The learned Counsel laid stress on the words "shall be dated" and "shall be rejected" found in Cls. (1) and (2) of the Statute 13.

In order to determine whether a particular provision found in the Statute is mandatory or directory, a mere use of word ''shall'' or ''may'' is not decisive factor and it will have to be determined having regard to the object and purpose of the enactment and the context in which the word ''shall'' or ''may'' is used. In a given case, in spite of the use of the word ''shall'' it may have to be held that the provision is directory and similarly in a given case in spite of the use of the word ''may'' it may be required to hold that the provision is mandatory. Therefore as held by the Supreme Court in the case of Govindlal Chhaganlal Patel Vs. The Agricultural Produce Market Committee, Godhra and Others, , the governing factor is the meaning and intent of the Legislature which should be gathered not merely from the words used by the Legislature but from a variety of other circumstances and considerations. In the aforesaid case, the Supreme Court, after quoting a passage from Crawford on ''Statutory Construction'' (Edn. 1940, Art. 261, p. 516), has held as follows:

"Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word ''shall'' or ''may'' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature." In the very decision, the observations made in the two more earlier decisions of the Supreme Court are quoted with approval, which an as follows:

"The term ''shall'' in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations Khub Chand and Others Vs. State of Rajasthan and Others, . In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. ''The key to the opening of every law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole''." (AIR 1974 SC 1682)

Thus, it is clear that mere use of the word ''shall'' or ''may'' is not a conclusive factor to hold that a particular provision is mandatory or directory. The subject matter the importance of the provision, the relation of that provision to the general object intended to be secured by the Statute in question, will have to be taken into consideration for deciding as to whether the provision relating to putting the date, on the nomination paper is mandatory or directory. By any stretch of - interpretation, it cannot be said that putting of the date on the nomination paper having regard to the fact that the nomination paper presented after the date and time fixed for the purpose shall have to be rejected is such a requirement so as to affect the validity of the nomination paper. Putting of the date on the nomination paper may serve the object that the nomination paper was completed on that date and also it may serve a basis for holding that the nomination paper could not have been presented earlier to that date. As long as there is no prohibition in law, and the provisions contained in the Statute also do not make it impermissible, to treat the date of presentation of the nomination paper as the date of the nomination paper if it does not bear the date, it is neither possible nor it will advance the object and intendment of the Statute to hold that the requirement of putting the date on the nomination paper is mandatory. Such an interpretation may lead to inconvenient consequences. Further, failure to put the date on the nomination paper does not go to the very root of the nomination paper and it does not affect the substance of it.

The learned counsel for respondents. 1 and 2 relied upon the Statement of Law as contained in para 14 of the aforesaid judgment of the Supreme Court and contended that the requirement regarding putting the date on the nomination paper is mandatory. In the aforesaid Govindlal Chhaganlal Patel Vs. The Agricultural Produce Market Committee, Godhra and Others, the Supreme Court was called upon to consider as to whether the provision relating to publication of the notification under Sections 5 and 6 of the Gujarat Agricultural Produce Markets Act, 1964, in Gujarati, in a newspaper having circulation in the area, in addition to the publication in the official gazette was mandatory or directory. Section 5 of the Gujarat Agricultural Produce Markets Act, provided for declaration of intention of regulating purchase and sale of agricultural produce in the specified area and Section 6 thereof provided for declaration of market areas. Having regard to the object and intendment of the statute and also consequences of disobedience of the notifications issued under Sections 5 and 6 of the aforesaid enactment, and also having regard to the fact that the "publication of the notification in the official Gazette was evidently thought by the legislature not an adequate means of communicating the Director''s intention to those who would be vitally affected by the proposed declaration and who would therefore be interested in offering objections and suggestions" and also in view of the fact that the publication in a newspaper attracts greater public attention than publication in the official gazette; it was held by the Supreme Court that the publication of the notification in Gujarati in a newspaper having circulation in the particular area was mandatory and must be fulfilled. In the instant case, no such consequences much less a penal consequence would flow out of failure to put a date on the nomination paper nor such a1ailure would affect the other persons. Therefore, the requirement of putting the date on the nomination paper cannot be held to be mandatory. It has already been pointed out that failure to put the date on the nomination paper does not render it invalid nor does it affect the substance of it in any manner. Therefore, the contention of the learned counsel for respondents 1 and 2 that putting the date on the nomination paper is one of the mandatory requirements of the Statute and failure to comply with it renders the nomination paper invalid, cannot be accepted.

The learned counsel for respondents 1 and 2 however relied upon several other decisions, to which I will now advert to. In the case of Narbada Prasad Vs. Chhaganlal and Others, , the Supreme Court was called upon to decide as to whether the rejection of the, nomination paper by the Returning Officer for not complying with the requirements of Section 33(5) of the Representation of the People Act, 1951, was justified or not. It was held that the nomination paper was rightly rejected. Section 33(5) of the Representation of the People Act, requires that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or relevant part there of or a certified copy of the relevant entry in such roll shall, unless it has been filed along with the nomination paper, be produced before the Returning Officer at the time of scrutiny. In that case, the candidate did not comply with the aforesaid provisions. Therefore, the nomination paper was rejected, and it was held as follows:

"There was no compliance with the provisions of Section 33(5) of the Representation of the People Act and there was no power in the court to dispense with this requirement. It is a well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded."

Relying upon the aforesaid passage, the learned counsel for respondents 1 and 2 contended that putting the date on the nomination paper was a mandatory requirement; therefore, failure to comply with the same did vitiate the nomination paper. It is to be noticed that the aforesaid observation was made in the context wherein the candidate, who is an elector of a different constituency, was required to prove by adopting one of the modes stated in Section 33(5) of the Representation of the People Act, 1951, that he was an elector of a different constituency.

In the instant case, no such requirement is required to be complied with. The requirement of putting the date on the nomination paper as already pointed out, cannot be held to be a mandatory requirement in view of the fact that the date of presentation of the nomination paper can very well be constructed as the date of the nomination paper if it does not contain a date; therefore, the observations of the Supreme Court in the case of Narbada Prasad v. Chhaganlal, cannot be made applicable to the present case.

The learned counsel for respondents 1 and 2 also relied upon the decision of the Supreme Court in the case of Harjit Singh Mann Vs. S. Umrao Singh and Others, . In that case, the nomination paper was filed beyond the time prescribed by the calendar of events and it was contended that the delay in presentation of the nomination paper could not justify its rejection as it was not a defect of a substantial character within the meaning of sub-section (4) of Section 36 of the Representation of the People Act, 1951. Rejecting that contention, the Supreme Court held as

"We have considered the argument that such a defect was not of a substantial character within the meaning of subsection (4) of Section 36 of the Act, but we are unable to uphold it in. the face of the clear requirement of ground (b) of sub-section (2) of Section 36, referred to above. It has to be appreciated that any other view would make the requirement for the presentation of the nomination paper before the last date for making nominations, and within the specified period of time, unworkable for it will not then be possible to draw a line up to which the delay in the delivery of the nomination papers could be condoned. In fact if the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character, it may be permissible to go to the extent of arguing that the nomination paper may be filed even up to the date and time fixed for the scrutiny of the nominations. That would not only cause administrative inconvenience but put the other candidates to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the scrutiny of the nominations. We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven o''clock in the forenoon and three o''clock in the afternoon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach." In the instant case, as already pointed out, the defect was not of a substantial nature and it did not go to the root of the nomination paper; therefore, the principle enunciated by the Supreme Court in Harjit Singh Mann''s case, cannot be made applicable to the present case.

The decision of the Supreme Court in the case of Sone Valley Portland Cement Co. Ltd. Vs. The General Mining Syndicate Pvt. Ltd., , also has no bearing on the question involved in the present case. In that case, the Supreme Court, while rejecting the contention that it is not permissible to interpret the Statute by a reference to what has been said in the subsequent Statutes, has held as follows:

"We also find ourselves unable to accept this contention and to disregard the well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration ''parliamentary expositions'' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incorporated Act ineffectual or otiose or inept. (See Krikness v. John Hudson & Co. 1955 AC 696 (HL)). This view also receives support from the decision of this Court in Yogendra Nath Naskar v. CIT Calcutta where approving the authoritative pronouncement in Cape Brandy Syndicate v. Inland Revenue Commrs. (1921) 2 KB 403 that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Section 3 or the earlier Act is ambiguous"

In the instant case, we are not concerned with the interpretation to be placed on the earlier Statutes, as such the aforesaid enunciation of the Supreme Court cannot be of any assistance in the present case.

Lastly, the learned counsel relied upon a decision of this Court in the case of Union of India v. T. R. Rao, reported in (1970) 1 Mys LJ 434. In that case, by virtue of a notification dated 12-9-1952 issued by the Rajpramukh of Mysore, all houses taken on lease by military engineers services organisation of the Defence Department of Government of India were exempted from the provisions of Section 8 (3) of the Mysore House Rent and Accommodation Control Act, 1951 As a result thereof, the applications for bona fide personal occupation filed by landlords became not maintainable. The 1951 Act came to be repealed by 1961 Act and there was no provision corresponding to Section 20 of the 1951 Act empowering the Government to exempt any class of buildings from the Act. While considering the situation brought About by 1961 enactment, this Court held that the immunity from eviction under the aforesaid notification issued under the 1951 Act, cannot be regarded as a right of possession conferred on the tenant and such immunity from eviction cannot be regarded as a right acquired or accrued and was not preserved by Section 6 (c) of the Mysore General Clauses Act. Further, it was held that as the 1961 Act contained no provision empowering the Government to exempt, the present Act must be held to manifest a ''different intention'' as referred to in Sections 6 and 8 of the General Clauses Act, 1899 and as such, the notification of the year 1951 did not survive the repeal of the 1951 Act. Thus, it is clear that the problem involved in the present case is quite different and as such, the decision in the aforesaid case is not at all relevant to the case on hand; therefore, no assistance can be derived from that case.

In Venkataramanappa v. State of Karnataka reported in (1979) 1 Kar LJ 214 : AIR 1978 NOC 262 the nomination paper was rejected, though it was presented on the last day fixed for filing of the nomination papers, on the ground that it did not contain the date. This Court has held that where a nomination is presented on the last date for receipt of nominations, the nomination though not dated should be treated as bearing the date of the day of receipt of the nomination. That proposition with which I am in full agreement, fully applies to the present case.

For the reasons stated above, it is held that the requirement of putting the date on the nomination paper cannot be held to be mandatory and failure to put the date on the nomination paper filed within the date and time fixed for that purpose, did not invalidate and did not affect the validity of the nomination paper and the date of presentation of the nomination paper can very well be regarded as the date of the nomination if it does not bear the date. As such, the order of the Registrar rejecting the nomination paper of the petitioner is liable to be quashed.

Accordingly, this writ petition is allowed. The order dated 21-7-1980 passed by the Registrar of the University of Mysore rejecting the nomination paper filed by the petitioner to the Senate of the University of Mysore from the constituency of Registered Graduates in Law, is hereby quashed. The Registrar is directed to accept the said nomination paper of the petitioner and to proceed with the election in question from the state at which it was interrupted by the interim order of this Court by fixing a fresh date for poll.

Let this order be communicated to the Registrar of the University of Mysore, within three days.

Petition allowed.