JUDGMENT : Barman, C.J. - The Petitioner-a successful candidate at an election for the office of Chairman Bari of Panchayat Samiti, having obtained the highest number of votes as claimed by him-Prays for issue of a Writ of Mandamus directing the Collector of Cuttack (opposite party No. 2 herein) to declare the result of the said election notified in his office Notice Board and cause publication of the result, in the Official Gazette, as required by Rule 38 of the Orissa Panchayat Samiti and Zilla Parishad (Conduct of Elections) Rules. 1966 (hereinafter referred to as the Rules), in the circumstances stated in the petition. 2. On January 7, 1968 there was an election held to the office of the Chairman of the Bari Panchayat Samiti in which the Petitioner, along with 7 others namely opposite parties 4 to 10 were candidates. Opposite party No. (sic), Additional Tahsildar of Jaipur, who was appointed as Election Officer for the said election, fixed January 9, 1968 as the date for scrutiny of the results of the elections as required by Rule 36. 3. On January 9, 1968 the Election Officer took up the scrutiny of the results of the election at the appointed hour at 11 a.m. in the office of the Bari Panchayat Samiti in the presence of-the polling agents. There was a demand in writing by the polling agent of a candidate for the counting of, votes by the Election Officer, which was opposed by the polling agent of one of the other rival candidate's. The Election Officer, however, over-ruled the objection and started the counting of votes polled by all the candidates. On scrutiny the Election Officer found that the Petitioner had secured 100 votes, that the next highest, number of votes-99 votes-was secured by opposite party No. 4 Achyutananda Samal, while the other candidates secured much less number of votes. 4. What happened thereafter is stated by the Election Officer himself in his letter dated January 17, 1965 addressed to the Collector of Cuttack. The circumstances under which the Election Officer was prevented from announcing the result of the election are stated by the Election Officer himself in the said letter, the relevant portion of which is quoted below: ..... ..... ...... He (Sri Achyutananda Samal, opposite party No. 4 who secured 99 votes as aforesaid) appeared in the scene for the first time. The circumstances under which the Election Officer was prevented from announcing the result of the election are stated by the Election Officer himself in the said letter, the relevant portion of which is quoted below: ..... ..... ...... He (Sri Achyutananda Samal, opposite party No. 4 who secured 99 votes as aforesaid) appeared in the scene for the first time. He told me that he would not allow the result of the counting to be recorded and announced by me. But I did not listen to him threat and went on recording the result in the form prescribed in Schedule VII. No sooner I had finished recording the total number of valid votes cast in all the polling stations in favour of all the candidates than he placed palms of his two hands on the record itself and his polling agent gave the order to his men to beat me. They beat me, tore records, ballot papers etc. and snatched away the record and other files and papers including ballot papers from me and broke and hurled furniture and files in the Block office towards me...I sustained injuries...I was unable to announce the result of the election of the Chairman of the Bari Panchayat Samity. In the said letter, the Election Officer also stated that he could not submit a report to the Collector earlier as he did not fully recover from the shock and grief caused to him by the acts as stated by him in his letter. 5. Rule 38 of the Rules which requires the Collector to publish the name of tile candidate duly elected in his office Notice Board-so far as material-provides as follows: 38. (i) After receipt of the result from the Election Officers, the Collector of the district shall forthwith publish the names of the candidates duly elected in his office Notice Board. (ii) The Collector shall also forward a copy to the Government Press for publication in the Orissa Gazette and also forward a copy to the Community Development and Panchayati Raj (Community Development) Department/Executive Officer of Zilla Parish ad concerned Block Development Officers. (iii)....... ... .... The question is: Can the Collector, under the law, publish the name of the successful candidate at the said election which the Election Officer was prevented from announcing in the circumstances stated above? (iii)....... ... .... The question is: Can the Collector, under the law, publish the name of the successful candidate at the said election which the Election Officer was prevented from announcing in the circumstances stated above? This requires an examination of the duties of the Election Officer for Conduct of Polling as required by the Rules. 9. Rule 36 requires the results of the counting of the ballot papers in respect of the Chairmanship of the Panchayat Samiti to be recorded in the form prescribed in Schedule VII. The duties of the Presiding Officer and Election Officer-whether mandatory or directory-immediately after close of the counting are fully set out in Rule 36 quoted below: 36. Immediately after close of the counting the Presiding Officer shall prepare separate bundles of all papers, reports and unused ballot papers in respect of polling for the office of the Chairman of the Panchayat Samiti, seal up each packet, note there on the election to which it relates and forward the packets to the Election Officer. It will be open to the candidates or their Polling Agents to affix their seals to the aforesaid packets. On the date fixed for scrutiny of the results of the elections to the office of the Chairman of Panchayat Samitis, the Election Officer shall carefully check up the votes polled by different candidates in the presence of candidates concerned or their Polling Agents as may be present and announce the result after recording in the form prescribed in Schedule VIII the total number of votes polled by each contesting candidate. The candidate securing the, largest number of votes shall he declared duly elected. In case of equality of votes, the result shall be decided by drawing lots and the candidate whose name is drawn first shall be declared duly elected. The Election Officer shall then forthwith intimate the Collector of the district the name of the duly elected candidate for the purpose of publication. (The underlinings of the word 'shall' in the above rule are ours). 7. The Election Officer shall then forthwith intimate the Collector of the district the name of the duly elected candidate for the purpose of publication. (The underlinings of the word 'shall' in the above rule are ours). 7. It, was submitted on behalf of the State, the Collector of Cuttack and opposite party No. 4 to the effect that the provisions of Rule 36-with so many "shall"-are mandatory in that without compliance with these formalities it cannot he said that there was announcement, declaration or intimation by the Election Officer of the name of the duly elected candidate to the Collector as required by Rule 36; it cannot he said that the Collector duly "received" the result from the Election Officer for publication of the name of the elected candidate; therefore, the Collector cannot publish the name of the Petitioner as duly elected candidate in his office Notice Board and forward a copy to the Government Press for publication in the Orissa Gazette as required under Rule 38. 8. In our opinion, these arguments urged on behalf of the said opposite parties overlook the very object-which is the determining factor of the Rules made by the Government in exercise of the powers conferred on them by Section 57 of the Orissa Panchayat samiti and Zilla Parish ad Act, 1959 (Orissa Act 7 of 1960). In interpreting the meaning of the word 'shall' as used in Rule 36 -whether its connotation is mandatory or directory-:-the principles which have to he kept in view are, as laid down by the Supreme Court, there: The question whether a particular provision of a statute which, on the face of it, appears mandatory-inasmuch as it uses the word "shall" as in the present case-or is merely directory, cannot be resolved by laying down any general principle but depends on the facts of each case, and for that purpose the object of the statute in making the provision is the determining factor. the purpose for which the provision has been made and its nature, the intention of the Legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject, and other considerations which may arise on the facts of a particular case in eluding the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory-see Raza Buland Sugar Co. Ltd. Vs. Municipal Board, Rampur, . 9. In the present case, the scheme of the Rilles shows that the purpose is to ensure the strict scrutiny of the result of the election in the manner provided by the Rules. In the Rules, "Presiding Officer" means any person appointed by the Election Officer to preside over the conduct of election at one or more polling stations located within the area of the Panchayat Samiti as defined in Rule 2(g) ; and "Election Officer" means a Collector of the district or any Gazetted Officer authorised by the Collector of the district by general or special order to exercise all or any of the powers and perform all or any of the duties of an Election Officer under these rules as defined in Rule 2(f). Part I of the Rules-covering Rules 3 to 38- provided for election of a Chairman of Zilla Parished and Panchayat Samitis. Rules 23 to 28 come under the heading "Conduct of Polling" under Part 1. Part I of the Rules-covering Rules 3 to 38- provided for election of a Chairman of Zilla Parished and Panchayat Samitis. Rules 23 to 28 come under the heading "Conduct of Polling" under Part 1. These rules lay down in detail the respective duties of the Election Officer and the Presiding Officer at the polling, the manner in which the results of the counting of ballot papers is to be recorded in the prescribed form, the duties of the Presiding Officer immediately after the close of the counting in preparing and sealing the ballot papers and other papers in packets and forwarding the same to the Election Officer; thereafter the duties, in sequence, of the Election Officer, in course of scrutiny of the result of the election, to carefully check 'up the votes polled by different candidates' ; to announce the result, after recording in the form prescribed in Schedule VIII the total number of votes polled by each contesting candidate; to declare the candidate securing the largest number of votes as duly elected ; and lastly, to intimate to the Collector of the district the name of the duly elected candidate for the purpose of publication. Rule 38 provides that after receipt of the result of the election from the Election Officer the Collector is to publish the name of the duly elected candidates in the manner as provided therein. These, in substance, are the provisions for ensuring proper conduct of the election of Chairman of Zilla Parishad and Panchayat Samitis. 10. Rule 36-with which we are mainly concerned-lays down the procedure immediately after the close of the counting of the ballot, papers in respect of election of the Chairman of Panchayat Samitis, and directs the Presiding Officer to forward the packets of ballot papers and other papers in separate bundles to the Election Officer for scrutiny. The rule also lays down the procedure 808 to how the Election Officer is to carefully check up the votes polled by different candidates, record the same in the form prescribed in Schedule VIII and thereafter to announce and declare the result, and finally to intimate to the Collector the Dame of the duly elected candidate for the purpose of publication. 11 All the conditions in Rule 36 apparently seem equally obligatory because every condition is couched in mandatory language. 11 All the conditions in Rule 36 apparently seem equally obligatory because every condition is couched in mandatory language. The crux of the problem is whether all the conditions are to be treated as mandatory or all of them as directory, or some of them as of one kind, and some of the other kind? What is the test, to apply and if a distinction is to be made, on what principle? In our opinion, the way to look at the matter is this. The rule lays down conditions some of which are devised for the careful checking up of votes polled by the different candidates in the course of scrutiny before announcement, declaration and intimation of the result of the election; careful checking up of the votes on scrutiny is in fact the object and purpose-which is the determining factor-for which Rule 36 is made; in the same rule there are other conditions which are preparatory, incidental, consequential or subsequent to the operations connected with the careful checking upon scrutiny of the votes polled by different candidates all conditions of the first kind-checking up and scrutiny-must of course be regarded as mandatory because they lie at the very root of the object and purpose for which the rule has been made, namely to ensure the correctness of counting of the votes polled at the election, including the checking and scrutiny of the votes polled by different candidates; they are fundamental and cannot be overlooked; if a defect of such fundamental kind occurs, it remains and cannot be cured; other conditions which provide for ministerial operations are merely directory and although compliance with them is also necessary, it is sufficient if the compliance is substantial. 12. Now, what is the position here? All which were required to be done by the Presiding Officer, who conducted the election of Chairman of Bari Panchayat Samiti-in the matter of preparation of separate bundles of ballot and other papers, reports etc., sealing of the packets with the necessary notes thereon and the forwarding of the packets to the Election Officer appear to have been duly done in the sequence as provided in the opening sentence of Rule 36. It is only after these packets were duly forwarded to the Election Officer that the results of the election were to be scrutinised on the date fixed Rule 36 provides to the effect that, in the course of such scrutiny the Election Officer shall carefully check up the votes polled by different candidates in the presence of the candidates concerned or their polling agents; the Election Officer's duties of checking up the votes in the course of scrutiny and recording in the form prescribed in Schedule VIII in the manner as laid down are clearly mandatory: in other words, these conditions relating; to the checking up and recording in the form prescribed in Schedule VIII must be complied with before the Election Officer can announce the result, declared the candidate who has secured the largest number of votes as duly elected and intimate to the Collector the name of the duly elected candidate for the purpose of publication. In our opinion, once scrutiny of votes polled and their recording in the form prescribed in Schedule VIII are complete, the subsequent acts of announcement of the results, declaration of the candidate securing the largest number of votes as duly elected, and intimation of his name to the Collector for the purpose of publication which are to follow-being in the nature of mere formal acts incidental or consequential to the scrutiny of votes and their recording in the prescribed form in Schedule VIII -must be held to be only directory and not mandatory and strict compliance thereof is not contemplated by the Rule; substantial compliance will meet the requirements of the Rule. 13. The material portion of the form in chedule VIII in which the Election Officer bad recorded the total number of votes polled by each contesting candidate, for ready reference, is quoted below: SCHEDULE VIII. Serial No. Name of candidate Total number of valid votes cast in all the polling stations. (1) 1 2 etc. (2) (: ) Total number of ballot papers rejected...... Total number of ballot papers found in the ballot boxes of a polling stations.... "...... Sri....... son of '''''''' is declared to have been duly selected as the Chairman of.... "... "... . Panchayat Samiti Zilla Parisbad ... Date..... Place....'',.... Signature of Election Officer. 14. (1) 1 2 etc. (2) (: ) Total number of ballot papers rejected...... Total number of ballot papers found in the ballot boxes of a polling stations.... "...... Sri....... son of '''''''' is declared to have been duly selected as the Chairman of.... "... "... . Panchayat Samiti Zilla Parisbad ... Date..... Place....'',.... Signature of Election Officer. 14. It is clear from the letter of the Election Officer dated January 17, 1965, that he recorded in this form the total number of votes polled by each contesting candidate in that he stated therein that the Petitioner secured 100 votes while opposite party No. 4 Achyutanand Samal was next to him securing 99 votes and other candidates secured far less number of votes. The Election Officer also clearly stated in his letter that no sooner he had finished recording the total number of valid votes cast in all the polling stations in favour of an the candidates than the opposite party No. 4 Achyutananda Samal placed the palms of his two hands on the record itself, and his polling agent gave the order to his men to beat him (the Election Officer). Once toe checking up of the votes on scrutiny and the recording in the form prescribed in Schedule VIII had been done according to the mandatory provisions of Rule 36, the only formal acts which remained to be done by the Election Officer were the announcement of the result of the election, declaration of the Petitioner securing the largest number of votes as duly elected, and intimation of the name of such duly elected candidate to the Collector of the district for the purpose of publication. 15. In the circumstance in which the Election Officer is alleged to have been placed, as alleged by him in his letter namely, his having been beaten by the men of the polling agent of the opposite party No. 4 who are alleged to have torn the ballot papers, etc., snatched the records, files and papers including ballot papers, broken and burled furniture and files at him ( the Election Officer) who sustained injuries-the Election Officer was prevented from immediately making the announcement of the result, declaring the Petitioner who secured the largest number of votes as duly elected, and intimating the name to the Collector for the purpose of publication. Even so, we find that the mandatory requirements of Rule 36, relating to the preparation by the Presiding Officer of bundles of all relevant papers into packets and their sealing and despatch to the Election Officer, scrutiny by the election officer of the result of the election, checking up of the votes polled by each of the contesting candidates, and his recording of the votes in the form prescribed in Schedule VIII had all been duly complied with. Indeed, the directory provisions relating to the announcement of the result, declaration of the Petitioner as duly elected, and intimation of his name to the Collector for the purpose of publication could have been immediately complied with, but for the alleged intervening circumstances over which the Election Officer had apparently no control. In our opinion, the publication of the name of the Petitioner as the candidate duly elected, in the office Notice Board of the Collector and in the Orissa Gazette must, in these circumstances, follows as a matter of course, and cannot be held up. 16. In this view of the case, a writ of mandamus is directed to be issued against opposite party No. 2 the Collector of Cuttack directing him to publish the name of the Petitioner as duly elected as the Chairman of Bari Panchayat Samiti in the Collector's office Notice Board and to forward a copy of the same to the Government Press for publication in the Orissa Gazette, and to do all other acts as are required to be done by the Collector under Rule 38 of the Rules. The writ petition is accordingly allowed in terms 808 aforesaid. Opposite party No. 4 Achyutanand Samal will pay to the Petitioner the costs of this writ petition. Hearing fee Rs. 100/- Rupees one hundred only). Ray, J. 17. I agree. Final Result : Allowed