Wanchoo, C. J - (1.) THIS is an application by Bishambhar Dayal and three others against the Chief Panchayat Officer, the Returning Officer and the Sarpanch and Panchas of Tehsil Panchayat, Behror.
(2.) THE case of the applicants in briefly this. Election for the offices of Sarpanch and Panchas of Tehsil Panchayat, Behror was actually held on the 15th of July 1956 and Shri Phoolchand was the Returning Officer. THE applicants were some of the candidates for the offices of Sarpanch and Panchas and were defeated in the election on that day THE applicants' contention is that the Returning Officer did not specify the date of the election in the various Panchayats. the members of which were electors of this Tehsil Panchayat and, therefore, the entire election should be set aside. Reliance in this connection is placed on R. 23 of the Panchayat Election Rules, 1954 and it is urged that that rule is mandatory and as that was not complied with, the election should be set aside. Besides this point, which relates to the whole election, the applicants also raised other points relating to individual candidates who succeeded. So far as that is concerned, we are of opinion that the applicants have to file an election petition under rules 19 and 20 against individual Panchas if they want to challenge any irregularity in the election relating to an individual Panch. We do not therefore propose to refer to the other points raised in this application. The application has been opposed on behalf of the Sarpanch and Panchas who were elected. Their case is that assuming that no notice was given to the parties as required by R. 23, this Court should not interfere, firstly, because rule 23 is merely directory and secondly, because, in any case, 340 electors out of a total of 356 or so were actually present at the time of the election. Rule 23 is in these terms : - "the Returning Officer shall announce to the Panchayats concerned the date fixed for election and require the prospective candidates to file with him on a specified date which shall not be less than a week before the date fixed for election, their nomination papers in the following form. . . . . . . . . . . . . . " This rule requires two things firstly, fixation of the date of election and its announcement to the Panchayats concerned and secondly, calling upon the persons who propose to stand for election to file their nomination papers at least one week before the date fixed for election. The question is whether this provision is mandatory or merely directory. This Court had occasion to consider a similar provision under R. 4 of the Panchayat Election Rules relating to Gram Panchayats and it was held in Prabhudayal vs. Chief Panchayat Officer (1 that R. 4 is a mandatory rule and must be strictly followed. Learned counsel for the opposite parties, namely the Sarpanch and Panchas, contends that R. 23 is in certain respects different from R. 4 and, therefore, we should not construe that rule to be mandatory, but should hold it to be merely directory. The main difference which he pointed out is that under R. 4, the nomination takes place on the date of the election and, therefore, it was held that seven days' notice was necessary in order to give prospective candidates time to canvass for votes and so on. In this case it is urged that nomination is made seven days before the date of election and, therefore, this rule is not mandatory. It is enough to say that we see no difference in principle so far as the fixation of the date of election is concerned. It is true that R. 23 lays down that nomination may be made at least seven days before the date of election. But that presupposes that the date of election would be fixed before the nominations are called and this date would be at least seven days after the date fixed for nomination. We are therefore of opinion that R. 23 is in as much mandatory as R. 4. As a matter of fact, we cannot see how fixation of a date for an election can be left to the vagaries of the Returning Officer and why the rule providing certain periods before the election takes place should not be held to be mandatory. We are therefore of opinion that R. 23 is mandatory and should be strictly complied with in the same manner as R. 4. Our attention was drawn however to a number of cases to support the view that R. 23 should be held to be directory. The first case is Ajit Kumar Sen and another vs. State of West Bengal (2 ). This case certainly supports the view urged on behalf of the opposite parties inasmuch as it laid down that the provision under sec. 45 (3) of the Calcutta Municipal Act which require publication of the notification two months before the election was directory and not mandatory. The learned Judges fur her went on to hold that where the election was first notified to be held two months after a certain notification, but was later postponed and was held six weeks after the second notification, there was substantial compliance with sec. 45 (3 ). The learned Judges were in that case apparently influenced by the fact that setting aside the election in the circumstances would mean a lot of expense and would thus inflict greater harm. This ease is in our opinion, distinguishable, for what had happened there was that instead of two months' notice, six weeks' notice was given. In our case, no notice whatsoever had been given to the Panchayats as required by rule 23. Therefore, even if we were to hold that rule 23 was directory, this case would not help the opposite parties because even there it is laid down that directory provisions have to be substantially complied with, though not strictly. We may and with all respect that we find it rather difficult to accept the view taken by the learned Judges of the Calcutt High Court holding that a provision like this is merely directory and not mandatory. The next case on which reliance was placed is Shyabuddinsab Mohidinsab Akki vs. Gadag-Betgeri Municipal Borough (3 ). in that case, what had happened was that instead of giving written notice as required by the law, oral notice was given of an election to the Chairmanship of a municipality; but all the members of the Municipal Board were present when the election was held. There was also a special provision in the Bombay Municipal Boroughs Act that any omissions in the manner of service of the notice are mere irregularities which would not vitiate the proceedings. In those circumstances, it was held that the irregularity committed in not giving notice in writing did not materially affect the proceedings and the requirement that there must be notice in writing is merely directory. This case again is distinguishable, for all the members of the Board were present when the election was held. In the case before us, it is admitted that at least 16 of the electors were not present. The considerations might have been different if all the 356 electors had been present when this election was held on the 15th of July 1956. But as 16 of them at least were undoubtedly absent, this case could not be applicable. We are therefore of opinion that R. 23 must be held to be mandatory like R. 4 and if no notice is given in compliance with the rule, the election would be invalid. We do not express however any opinion on that extreme case where though there might be no compliance with R. 23, every single elector is present when the election is held. That matter will be examined if and when such a case arises. We therefore allow he application and set aside the election of opposite parties Nos. 3 to 11. It is a matter of regret that election of this Tehsil Panchayat is again being held up; but the fault lies with the Returning Officer who apparently did not care to read R. 23 and give notice in accordance with it. In view of the circumstances, we order parties to bear their own costs. .;