Judgment Madan Mohan Prasad, J. 1. This is an application under Articles 226 and 227 of the Constitution of India for issue of an appropriate writ quashing the order of the Election Tribunal by which it has set aside the election of the petitioner as the Mukhia of Kolhua Deori Gram Panchayat in the district of Sahabad and foSr issue of mandamus restraining the respondents from giving effect to the order aforesaid. 2. It appears that an election was held in respect of the office of the Mukhia of the aforesaid Gram Panchayat. 25th March, 1971 was fixed for filing of the nomination paper and the petitioner filed his nomination paper on that date. On the very day there was a scrutiny and his nomination paper was found to be valid and also to be the only nomination received. Accordingly he was declared elected on the 12th of April, 1971, Two days earlier on the 10th of April, 1971, respondent No. 1 had filed a petition alleging that he had filed a nomination paper and it was found to be valid on the scrutiny but his name did not appear in the list of the nominated candidates. A report was made by the Block Development Officer which was received on the 17th April, 1971, and thereafter the application of respondent No. 1 was rejected on the 19th April, 1971. Therefore the aforesaid respondent filed an election petition before the Subdivisional Officer of Bhabua on the 7th of May, 1971. The aforesaid petition was put up before Mr. A. Mukherji District Development Officer, (who had been appointed Election Tribunal), on the 10th of June, 1971. He directed the petition to be put up for admission on the 7th of July, 1971 and directed notices to be issued. It appears that for some reason the District Magistrate transferred the election petition to Shri S. K. Lal, Additional Collector on the 28th of June, 1971. This officer is said to have been entrusted also with the enquiry against the Block Development Officer in this respect and in that connection he had to go to Adhaura. He fixed 3rd July. 1971, as the date when the election petition was to be put UP before him. While he was at Adhaura on the 3rd of July, 1971, the election-petitioner appeared and prayed for the admission of the case. He fixed 3rd July. 1971, as the date when the election petition was to be put UP before him. While he was at Adhaura on the 3rd of July, 1971, the election-petitioner appeared and prayed for the admission of the case. It was admitted and there was a further direction by the court to get notices served on the respondent by a special messenger fixing the case for hearing on the 5th of July, in his camp court at Adhaura. On the 5th of July, 1971, the election-petitioner and other respondents appeared but the present petitioner did not appear. Having found that notices had been served on him the Tribunal proceeded to hear the case and passed the order mentioned above on that very day. Hence the present application. 3. Learned counsel for the petitioner has raised three points before me which he said would be enough for the disposal of the present application. Firstly, it has been urged that the election petition was not presented before the proper court and the trial was therefore vitiated, secondly, that the election petition itself was barred by time and thirdly, that there has been a clear violation of Rule 78 of the Bihar Panchayat Raj Rules, 1947 (hereinafter referred as the Rules) and it is urged the order must therefore be set aside. 4. Learned counsel for the respondent has however contended that in regard to the first two points, it is obvious from the petition that they have not been raised and both of them involve an enquiry into questions of fact and these points should not therefore be allowed to be agitated for the first time without specific ground having been taken in that regard. On the third point he has urged that Rule 78 is not mandatory and is merely directory to enable the respondent to have notice of the election petition and therefore the violation thereof will not vitiate the trial. 5. On the third point he has urged that Rule 78 is not mandatory and is merely directory to enable the respondent to have notice of the election petition and therefore the violation thereof will not vitiate the trial. 5. With regard to the first contention, the point is sought to be made out by stating that since the election petition was based on amongst others the ground that there had been an improper rejection of the nomination paper by the Election Officer to which an objection had been made before the Subdivisional Officer and therefore the election petition should have been presented before the Additional District Magistrate who could be the election tribunal and not before the Subdivisional Officer himself. Learned counsel for the respondent has however urged that in this case the allegation made by the election-petitioner was not of improper rejection of the nomination paper but that his nomination paper had been destroyed even though found valid by the Election Officer. Therefore, it is said, the matter did not relate to acceptance or rejection of the nomination paper. His grievance is as stated earlier that these are purely questions of facts which if they had been taken as grounds in the petition, the respondent could have made enquiries in respect of these facts and refuted them. The petitioner has not even stated the basic facts which would give rise to this point of law. I find that there is force in these contentions of learned counsel for the respondent I do not find the facts which would be the basis for the argument aforesaid stated in the petition. It appears that the petitioner has not even annexed a copy of the election petition and it is not known to whom it is addressed. He has only filed the order of the election tribunal as annexure 1. He cannot therefore be allowed to agitate this point in the circumstances mentioned above. 6. With regard to the second contention also the argument of the learned counsel for the respondent is that there is no statement in the petition as to when Mr. Mukherji, the District Development Officer was appointed the tribunal. Unless a tribunal had been appointed, it is said, the petition could not have been filed before him. 6. With regard to the second contention also the argument of the learned counsel for the respondent is that there is no statement in the petition as to when Mr. Mukherji, the District Development Officer was appointed the tribunal. Unless a tribunal had been appointed, it is said, the petition could not have been filed before him. It is next said that the election petition had been filed on the 7th of May, 1971, before the Subdivisional Officer and it was only taken up by Mr. Mukherji on the 10th of June, 1971, but in the absence of anything to show that the Subdivisional Officer was not proper election tribunal that by itself would not show that it has been presented after the lapse of thirty days. It is accordingly urged by the learned counsel that in absence of the statement of basic facts giving rise to this argument, the argument must not be entertained. Again I find that there is force in this contention. Thus it is not open to the petitioner either to raise the question of limitation or the question of wrong presentation of the election petition. 7. There is however the third point namely the violation of Rule 78. Rule 78 is as follows: "If the election petition is not dismissed under Rule 73 or 77 the Election Tribunal shall fix a date for the hearing of the petition and shall, not less than ten days before the date so fixed, cause a notice of the presentation of the petition and of the date fixed for hearing of the same together with a copy of the petition to be served on each respondent and on the Subdivisional Magistrate, and shall forthwith forward a copy of the petition to Government." 8. There cannot be the slightest doubt that before the election petition is tried a date of hearing has to be fixed and not less than 10 days before the date so fixed notice has to be given of the date fixed for hearing to the respondent and the further requirement of this rule is that such notice is to be served on the Subdivisional Magistrate and further that a copy thereof has to be forwarded forthwith to the Government. In the present case it is not disputed and cannot be disputed that there has been a violation of this Rule. In the present case it is not disputed and cannot be disputed that there has been a violation of this Rule. On the 5th of July, 1971, the election tribunal fixed a date for hearing and notice itself was issued by the order of 3rd July, 1971, and it is only one day which intervened between the issue of notice and hearing of the election petition. Whether the requirement of this rule is mandatory or directory, the fact cannot be disputed that ten days as required under the law was not allowed in this case. There is no escape from the conclusion thus and there has been a violation of Rule 78. 9. Learned counsel for the respondent has contended that respondent No. 1, namely, the petitioner ought to have appeared and prayed for time and if he did not do so he must be deemed to have waived his right to get ten days notice. I am unable to accept this contention firstly for there is no estoppel against law and secondly because the entire purpose of the rule providing ten days notice to the respondent is to ensure a fair and impartial trial of the election petition after giving due and reasonable opportunity to the respondent. If one conies to the conclusion that there has been a failure of justice or denial of opportunity on account of the absence of due notice to the respondent in violation of Rule 78 It would be enough to make the order liable to be set aside. 10. I now come to the next question raised whether Rule 78 is mandatory in character. In my view it is. Learned counsel for the parties have stated that there is no decision on the point reported or unreported to their knowledge and this case is one of first impression. For this purpose, I would like to draw attention to certain features of law found in Rule 78. Firstly one finds that the word shall has been used in respect of fixing a date for hearing and in respect of the notice which has to be given ten days before the date of hearing. It appears next that the rule making authorities have been cautious in laying down further safeguards. Firstly one finds that the word shall has been used in respect of fixing a date for hearing and in respect of the notice which has to be given ten days before the date of hearing. It appears next that the rule making authorities have been cautious in laying down further safeguards. The first one is that a copy of the election petition will be required to be served on the respondent and there should be sufficient notice of the allegation contained in the petition to the respondent so as to enable him to meet the case against him. There are further safeguards that notice be served on the Sub-divisional Magistrate and copy of the petition be forwarded to the Government forthwith. It is quite obvious, therefore, the rules are intended to bind the election tribunal to a certain course of conduct which would ensure a fair trial of the election petition by giving the respondent sufficient notice of the date of hearing as well as of the allegation against him. There is no warrant for the proposition that these directions of the rule making authority contained in Rule 78 are meant merely to be directory and that the violation thereof would not make any difference. If it were held to be directory it would be open to the election tribunal to issue notice on the same day, serve it on the respondent on the same day and to hear the election petition on the very same day. It would be preposterous to think that the rule making authority intended to allow such a course of conduct. Reading Rule 78 in this light there can be no escape from the conclusion that it is of mandatory character. 11. The view which I have taken is supported by the observation of their Lordships in the case of Dinabandhu Sahu V/s. Jadumoni Mangaraj ( AIR 1954 SC 411 ). Their Lordships observed in that case that the rights under litigation in the election proceedings are not common law rights but rights which owe their existence to statutes and the extent of those rights must be determined by reference to the statutes which create them. In another case reported in AIR 1954 SC 210 (Jagan Nath V/s. Jaswant Singh) at page 212 para. In another case reported in AIR 1954 SC 210 (Jagan Nath V/s. Jaswant Singh) at page 212 para. 7 their Lordships held as follows; "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected." It is therefore not open to say that the provision of Rule 78 is merely directory in its character, since it concerns the very fundamental question, namely, sufficient and due notice to the respondent so as to enable him to meet the case against him and goes to the very root of the principle of natural justice. The respondent by virtue of violation of Rule 78 is placed in a position in which he is unable to meet the case against himself. There can be no other probable view than that the violation denies the right guaranteed to a person on the principles of natural justice. The respondent by virtue of violation of Rule 78 is placed in a position in which he is unable to meet the case against himself. There can be no other probable view than that the violation denies the right guaranteed to a person on the principles of natural justice. Having considered the point in all its perspective I am of the opinion that Rule 78 is mandatory in character and violation thereof results in the order being bad in law. 12 Even if I were to hold that Rule 78 is not mandatory but only directory, it is well settled that even directory principles have to be complied with and are not to be flagrantly violated. In the circumstances of the present case it cannot be said that the election tribunal had given a reasonable opportunity to the petitioner to meet the case against him. Admittedly the notice was sent to him at a place called Bhagwanpur and the trial of the petition was to be held at Adhaura. One does not know the distance between the two places. Again there is no knowing what was the time at which the notice was served on him on the 3rd of July, 1971, but he was expected to appear in court at 10-30 a.m. on the 5th of July and be ready to meet the case against him with all his witnesses and documents if any and it must also be borne in mind that before this date, namely the 3rd of July, 1971, the petitioner could not have known anything about the filing of the election petition. On the facts and circumstances of the case it seems to me too much to say that the petitioner should have got ready within 24 hours or 30 hours before the election petition was to be tried. Irrespective therefore of the question whether Rule 78 is mandatory or directory upon the facts themselves it is patent that there was no reasonable opportunity at all given to the petitioner to meet the case against him and there has been thus a violation of the principles of natural justice. 13. Learned counsel for the State has urged that this is not a case for interference even though the order might have been in violation of law. 13. Learned counsel for the State has urged that this is not a case for interference even though the order might have been in violation of law. His argument is that in the present case it has been found by the Tribunal that there were more nomination papers than that of the present petitioner. Therefore his election was undoubtedly not legal and for that reason it would not be fair to allow him to act as the Mukhia by quashing the order of tribunal which has set it aside. In this connection he has urged that if I were to enter into the facts I would find that the election-petitioner had been the Mukhia for nearly 12 years; that a day or two before the date of nomination he had paid his dues to the Panchayat and thirdly that he had made deposit of the fee required to be paid with the nomination paper which circumstances would go to show that there was at least his nomination paper there along with that of the petitioner. I am afraid I am unable to entertain this argument, If I were to make an assumption of the fact when the very fact is in dispute in the present election petition namely whether or not there were any more nomination papers, there would be no point in giving any opportunity to the respondent to meet the case against him because in such circumstances the case against him will even be taken as proved and it would be the very premise for further action, I am therefore unable to accept this argument. 14. In the result, I find that the election tribunal has acted clearly in violation of Rule 78 which is of mandatory character and also in denial of the principle of natural justice. Accordingly, the order passed by the tribunal is quashed. It will now be for the Tribunal to give proper notice to the petitioner and proceed in accordance with law. This application is accordingly allowed but in the circumstances of the case there will be no order as to costs.