NARUBHA RAMSANG v. STATE — 1973 DIGILAW 35 (GUJ)

J. B. MEHTA, S. H. SHETH, J. ( 1 ) THE petitioner who is a voter at Gram Panchayat elections in village Haripar Taluka Lalpur District Jamnagar has filed this petition challenging the validity of the entire elections held in November 1972 ( 2 ) HARIPAR has a Gram Panchayat consisting of 11 seats which include two seats reserved for women and one seat reserved for Scheduled castes. It was divided at the time of the impugned elections in three wards. On 23 October 1972 the Taluka Development Officer Lalpur published a notification by which he appointed 30th November 1972 as the date of election under sec. 18 (1) of the Gujarat Panchayats Act 1961 On the same day he published another notification by which he announced the time table for different stages of election. He fixed 9th November 1972 as the date for receiving nominations 10 November 1972 as the date of scrutiny of nomination papers 11 November 1972 to 17th November 1972 as the dates for withdrawal of nominations and 30th November 1972 as the date for recording the votes and counting them. At the impugned elections respondents Nos. 4 to 14 were elected as members of the Gram Panchayat. ( 3 ) IN this petition in support of his contention that the impugned elections to Haripar Gram Panchayat are invalid and liable to be quashed the petitioner has raised two contentions. The first contention is that as required by sub-rule (1) of rule 7 of the Gujarat Gram and Nagar Panchayats Elections Rules 1972 thereinafter referred to as the election rules for the sake of brevity) the notification appointing the date of election was not published in the Official Gazette and that therefore a breach was committed of sub-rule (1) of rule 7. The second contention which has been raised is that the notification issued under sub-sec. (1) of sec. The second contention which has been raised is that the notification issued under sub-sec. (1) of sec. 18 on 3rd October 1972 by the Taluka Development Officer was cancelled by him by the subsequent notification issued by him on 30th October 1972 and was thereafter revived by his further notification on 3rd November 1972 According to the petitioner after having cancelled on 30 October 1972 the notification dated 23rd October 1972 the Taluka Development Officer ought to have announced and published fresh time-table of the elections in accordance with sub-rule (4) of rule 7 and since he had not done so the entire elections held pursuant to the said notification of 3rd November 1972 were invalid and liable to be quashed. ( 4 ) THE notification issued by the Taluka Development Officer on 23rd October 1972 under sub-sec. (1) of sec. 18 is hereinafter referred to as the election notification for the sake of clarity. The second notification which was issued on 23rd October 1972 by which he fixed the time table of the elections is hereinafter referred for the sake of clarity as the election time table. The third notification issued by him on 30th October 1972 by which hi cancelled his first notification of 23rd October 1972 is hereinafter referred to as the cancellation notification. The fourth and last notification which was issued on 3rd November 1972 by which he revived the two notification issued by him on 23rd October 1972 is hereinafter referred to as the revival notification. ( 5 ) THE answer to the two contentions which Mr. Takwani has raised before us depends upon the answer to the question whether the provisions of rule 7 of the Election Rules are directory or mandatory If we find that they are mandatory we are further required to find out whether noncompliance with those provisions renders the election void. A few decisions have keen cited before us which lay down principles on the Strength of which we can determine whether the provisions of rule 7 of the Elections Rules are mandatory or directory. A few decisions have keen cited before us which lay down principles on the Strength of which we can determine whether the provisions of rule 7 of the Elections Rules are mandatory or directory. ( 6 ) IN Kalubhai Kesrisingh Mahida v. The State of Gujarat and others 6 Gujarat Law Reporter 451 a Division Bench of this Court in a case under the Gujarat Panchayats Act has cited from Maxwells interpretation of Statutes (11th edition) the following passage and have applied the principles enunciated therein to the construction of this statute"when a statute requires that something shall be done or done In a particular manner or form without expressly declaring what shall be the consequence of noncompliance the question often arises: What intention is to be attributed by inference to the Legislature ? Where indeed the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other no doubt can be entertained as to the intention". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "the reports are full of cases dealing with statutory provisions which are devoid ox indication of intention regarding the effect of non-compliance with them. In some of them the conditions forms or other attendant circumstances prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others such prescriptions have been considered as merely directory the neglect of which did not affect its validity or involve any other consequence than a liability to a penalty if any were imposed for breach of the enactment. The propriety indeed of ever treating the provisions of any statute in the latter manner has been sometimes questioned but it is justifiable in principle as well as abundantly established by numerous authorities". "it has been said that no rule can be laid down for determining whether the commend is to be considered as a mere direction instruction involving no invalidating consequence in its disregard or as imperative with an implied nullification for disobedience beyond the fundamental one that it depends on the scope and object of the enactment. "it has been said that no rule can be laid down for determining whether the commend is to be considered as a mere direction instruction involving no invalidating consequence in its disregard or as imperative with an implied nullification for disobedience beyond the fundamental one that it depends on the scope and object of the enactment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience but the question is in the main. . . . . . governed by considerations of convenience and justice and when the result would involve general inconvenience or injustice to innocent persons or advantage to those guilty of neglect without promoting the real aim and object of the enactment such an intention is not ( to) be attributed to the Legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if directory enactment be obeyed or fulfilled substantially". "a strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time or under other specified conditions such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative". ( 7 ) IN terms of the principles laid down in this passage we have to find out whether the intention of the Legislature is defeated by omission or failure on the part of the Taluka Development Officer to publish the election notification in the Official Gazette. ( 7 ) IN terms of the principles laid down in this passage we have to find out whether the intention of the Legislature is defeated by omission or failure on the part of the Taluka Development Officer to publish the election notification in the Official Gazette. We have also to find out whether the omission or failure to publish the election notification in the aforesaid manner would involve general inconvenience or injustice to innocent persons or advantage to those who are guilty of neglect without promoting the real aim and object of the enactment. ( 8 ) IN Dhirendra Nath Gorai v. Sudhir Chandra Ghosh and others A. I. R. 1964 Supreme Court 1300 the Supreme Court was considering the provisions of the Bengal Money Lenders Act 1940 It was trying to find out whether non-compliance with sec. 35 of the said Bengal Money Lenders Act rendered the sale a nullity. While considering that question they have quoted with approval a passage from the decision of Mr. justice Mukherji in Ashutosh Sikdar 9. Biharilal Kirtaria I. L. R. 35 (Calcutta 61 The passage is in the following terms :"no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation whereas nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever or is void and incapable of being validated"the Supreme Court has also with approval reproduced in that decision a passage from the decision of Mr. Justice Coleridge in Holmes v. Russell (1841) 9 Dowl 487" It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it amounts to an irregularity; if he cannot it is a nullity". It has been further observed in that decision:"a waiver is an intentional relinquishment of a known right; but obviously an objection to jurisdiction cannot be waived for consent cannot give a court jurisdiction where there is none. It has been further observed in that decision:"a waiver is an intentional relinquishment of a known right; but obviously an objection to jurisdiction cannot be waived for consent cannot give a court jurisdiction where there is none. Even it there is inherent jurisdiction certain provisions can not be waived". ( 9 ) IN Raza Buland Sugar Co. Ltd. Rampur v. The Municipal Board Rampur A. I. R. 1966 Supreme Court 895 the Supreme Court was considering the effect of the word shall used in sec. 131 of the U. P. Municipalities Act 1916 Sub-sec. (3) of sec. 131 of the said U. P. Municipalities Act provided as follows :"the Board shall thereupon publish in the manner prescribed in sec. 94 the proposals framed under sub-sec. (1) and the draft rules framed under sub-sec. (2) along with a notice in the form set forth in Schedule III". It was the aforesaid sub-section in which the expression shall was used and which the Supreme Court construed. The principle which they have laid down is whether a particular provision of a statute is mandatory or directory cannot be decided by laying down any general rule and that it depends upon the facts of each case. In order to determine such a controversy the object of the statute should be taken into account. It is one of the determining factors. 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 including 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. They have quoted in that decision a passage from the judgment of the Judicial Committee of the Privy Council in Montreal Street Railway-Co. v. Normandin 1917 A. C. 170. That passage reads thus:"the question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. . . . v. Normandin 1917 A. C. 170. That passage reads thus:"the question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. . . . . . . . When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of his duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature it has been practice to hold such provisions to be directory only the neglect of them though punishable not affecting the validity of the acts done. In his concurring judgment Mr. Justice Hidaytullah (as he then was) has evolved the following test. If a statute contains a provision for the protection of a person or a class of persons it is a mandatory provision because it goes to the very root of the exercise of the power. If a provision has been made merely for the purpose to ministerial operations it is directory. As for example the preparation of assessment rolls hearing of objections framing of assessment rules are all mandatory. If a statute contains a provision whose breach would frustrate the very policy of the law it is a fundamental provision which must be complied with. If there is a provision which requires publication of something in a particular kind of local newspaper it is a directory provision and if the publication of that thing has been done in some other kind of newspaper in breach of the aforesaid provision it does not produce any fatal consequences". ( 10 ) IN State of Punjab v. Satya Pal Dang A. I. R. 1969 Supreme Court 903 the following principle has been laid down:"the distinction between a mandatory provision of law and that which is merely directory is this that in a mandatory provision there is an implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself the neglect to perform it is fatal. But in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty". It is in light of the principles laid down in the above decisions that we have to construe the character of sub-rules (1) and (2) of Rule 7 of the Election Rules and find out the consequences to which the breach thereof leads. We first refer to sub-sec. (1) of sec. 18 of the Gujarat Panchayats Act. It provides thus:"the election of members to a panchayat shall be held on such date as in the case of a taluka panchayat or district panchayat the District Development Officer and in the case of a gram panchayat or Nagar panchayat the Taluka Development Officer may appoint in that behalf". The two provisos to sub-rule (1) are not material for the purpose of the present case. Sub-sec. (2) of sec. 18 provides thus:"such election shall be conducted in the prescribed manner". Sec. 2 (24) defines the expression prescribed as meaning prescribed by rules. Sec. 323 confers upon the State Government power to make rules for carrying out the purposes of the said Act. Without prejudice to the generality of the fore-going power conferred by sub-sec. (1) of sec. 323 upon the State Government sub-sec. (2) (b) empowers the State Government to make rules to provide for all matters expressly required or allowed by the Act to be prescribed by rules. ( 11 ) THE Election Rules have been mate by the State Government under the aforesaid provisions of the Gujarat Panchayats Act. Rule 7 of the Election Rules is material for the purpose of the present case. Sub rule (1) provides as follows:"the Election Authority shall by notification in the Official Gazette notify the date of election appointed by him under sub-see. (1) of sec. 18". Rule 7 of the Election Rules is material for the purpose of the present case. Sub rule (1) provides as follows:"the Election Authority shall by notification in the Official Gazette notify the date of election appointed by him under sub-see. (1) of sec. 18". Sub-rule (2) of rule 7 in so far as it is material for the purpose of the present case provides thus:" As soon as a notification under sub-rule (1) is published the Election Authority shall also by a notification appoint the dates the hours and place or places for the following stages of election namely"sub-rule (1) requires the election notification to be published in the Official Gazette. Sub-rule (2) requires the election time table to be published but it does not require it to be published in the Official Gazette. ( 12 ) RELYING upon the different language which has been used in sub-rule (2) Mr. Takwani has contended that sub-rule (1) and sub-rule both of which provide for publication of notifications specified therein do not provide for uniform mode thereof. Whereas sub-rule (1) requires publication of the election notification in the Official Gazette sub-rule (2) requires mere publication of the election time table and not necessarily in the Official Gazette. The difference in the language used in sub-rule (1) and sub-rule (2) is quite apparent. It appears to us on comparison of the aforesaid two provisions that the rule making authority has prescribed two different modes of publications in the two sub-rules of the same rule. Therefore when the rule making authority required the publication of the election notification in the Official Gazette it had some object in mind. ( 13 ) MR. Takwani has also asked us to compare the language of sub rule (1) of rule 7 of the Election Rules with the language of rule 7 of the Bombay Village Panchayats Election Rules 1959 made under the Bombay Village Panchayats Act 1958 That Act and those rules have now been repealed. Sub-rule (1) of rule 7 of the repealed rules provided as follows:"the Mamlatdar shall after it is decided to hold an election by notification in the village or villages concerned appoint the dates the hours and place or places for the following stages of an election namely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . "whereas sub-rule (1) of rule 7 of the repealed rules provided for the publication of the election notification in the village concerned sub-rule (1) of rule 7 of the Election Rules 1962 provides for the publication of the election notification in the Official Gazette. The difference which he has tried to point out to us is quite apparent and obvious. Therefore if sub rules (1) and (2) of rule 7 of the election rules provide different modes of publication of notifications specified therein and if sub-rule (1) of rule 7 of the Election Rules provides a mode of publication of election notification which is different from the mode of publication which sub rule (1) of rule 7 of the Repealed Rules provided the rule making Authority must necessarily have some object in mind to serve. So far as we are able to gather it appears to us that the publication in the Official Gazette ensures full and complete authenticity and accuracy It also ensures a complete certainty. Next it ensures availability of the notification to any one who wants to have access to it. It also ensures safeguard against manipulation or interference. A notification affixed at the village Chavdi or at some conspicuous place in the village is more likely to be interfered or tampered with while the publication thereof In an Official Gazette removes any such probability. It is therefore clear to us that the rule making Authority had in mind a purpose to serve when it provided for the publication of the election notification issued under sub-sec. (1) of sec. 18 in the Official Gazette. In light of the aforesaid factors such a publication is more conducive to democratic process and to free and fair elections. If therefore the publication of the election notification in the Official Gazette ensures in public interests the aforesaid advantages the provision contained in sub-rule (1) of rule 7 must be held to be mandatory. ( 14 ) THERE are three aspects which emerge from sub-rule (1) of rule 7 of the Election Rules read with sub-sec (1) of sec. 18. There must be an election notification issued by the Taluka Development Officer in the case of a Gram Panchayat. It must be published for the benefit of the people in the village. ( 14 ) THERE are three aspects which emerge from sub-rule (1) of rule 7 of the Election Rules read with sub-sec (1) of sec. 18. There must be an election notification issued by the Taluka Development Officer in the case of a Gram Panchayat. It must be published for the benefit of the people in the village. Thirdly it must be published in the Official Gazette. If anything is done de hors the Act it must be held to be ultra vires. In other words if an election notification has been issued under sub-sec. (1) of sec. 18 by an officer other than the Taluka Development Officer in the case of a Gram Panchayat such a notification will not be one issued under the Act but it will be one issued de hors the Act and therefore ultra vires. ( 15 ) IN the instant case the election notification is issued by the Taluka Development Officer who is competent under sub-sec. (1) of sec 18 to issue it. Admittedly that notification has been published in the village. If it was not published at all then anything done pursuant thereto would have been null and void. That is not the situation in the instant case. In this case the Taluka Development Officer has in exercise of the powers conferred upon him by sub-sec. (1) of sec. 18 issued the election notification and has also published it for the benefit of the people residing in village Haripar. It has not been published in the Official Gazette. We are told at the Bar by Mr. Takwani that that notification has not yet been published in the Official Gazette. That statement made by Mr. Takwani at the Bar has not been controverted either by Mr. Nanavati or Mr. Patel. ( 16 ) TWO principal things required to be done under sub-sec. (1) of sec. 18 read with sub-rule (1) of rule 7 of the Election Rules have been duly done. Third thing which the Taluka Development Officer was required to do-publication in the Official Gazette-has not been done. Publication in the official Gazette of the election notification confers upon the members of the public certain benefits some of which we have mentioned above. 18 read with sub-rule (1) of rule 7 of the Election Rules have been duly done. Third thing which the Taluka Development Officer was required to do-publication in the Official Gazette-has not been done. Publication in the official Gazette of the election notification confers upon the members of the public certain benefits some of which we have mentioned above. The publication of the election notification in the Official Gazette is therefore in our opinion a mandatory requirement and every Taluka Development Officer or the Election Authority must necessarily comply with it. There is no escape for the Election Authority from compliance with this requirement. ( 17 ) THE further question however which arises for our consideration is whether non-compliance with the mandatory requirement of sub-rule (1) of rule 7 of the Election Rules is such as to vitiate the entire election and to render it null and void. Ordinarily non-compliance therewith would have produced this consequence. However our attention has been invited to sub-sec. (2a) of sec. 24 of the Gujarat Panchayats Act. It is a sub-section which places a fetter upon the power of the Civil Judge under sec. 24 to set aside the election under the circumstances specified therein. It provides thus:"if the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under sec. 323 or of an irregularity or informality not corruptly caused the Judge shall not set aside the election". The explanation provides that the expression error in the sub-section does not include any breach of or any omission to carry out or any non-compliance with provisions of this Act or the rule made there:- under whereby the result of the election has been materially affected. This is the mandate issued by the Legislature to the Civil Judge. Though that mandate in the form in which it has been issued by the Legislature to the Civil Judge may not be binding upon this Court in exercise of its constitutional jurisdiction the intention of the Legislature expressed therein must be given effect to by us. The intention of Legislature which subsec. (2a) of sec. 24 discloses in quite clear. It does not want any election held under the Gujarat Panchayats Act to be set aside on the ground that a particular rule made under sec. The intention of Legislature which subsec. (2a) of sec. 24 discloses in quite clear. It does not want any election held under the Gujarat Panchayats Act to be set aside on the ground that a particular rule made under sec. 323 of the Gujarat Panchayats Act has not been complied with or implemented unless such non-compliance or failure to implement has materially affected the result. Sub-rule (1) of rule 7 of the Election Rules has been made under sec. 323 of the Gujarat Panchayats Act. Therefore as long as the Taluka Development Officer has exercised jurisdiction vested in him by sub-sec. (1) of sec. 18 and has published the election notification though he may not have published it in the Official Gazette it becomes extremely difficult for us to say that the result of the impugned elections to Haripar Gram Panchayat has been materially affected. In a given case the omission or failure to publish the election notification in the Official Gazette may produce material effect on the result of the elections. Where there is such a case non-compliance with the mandatory requirement of publication of the election notification in the Official Gazette under sub-rule (1) of rule 7 must vitiate the elections held pursuant thereto. ( 18 ) IN the instant case we have no evidence to show that the failure or omission on the part of the Taluka Development Officer to publish the election notification in the Official Gazette has produced any material effect on the result of the elections. Bearing in mind the legislative intent disclosed by sub-sec. (2a3 of sec. 24 and bearing also in mind that there is no evidence on record to show that the failure to publish the election notification in the Official Gazette has caused any prejudice to the petitioner or material effect on the result of the election it is extremely difficult for us to uphold the first contention raised by Takwani even though in our opinion the statutory requirement of publication of the election notification in the Official Gazette is mandatory in character. ( 19 ) THERE are three unreported decisions of this Court to which our attention has been invited. The first decision is in Special Civil Application No. 470 of 1970 decided by Mr. Justice D. A. Desai on 8th July 1970. (Patel Khemabhai Hargovan v. Jantral Village Panchayat. ( 19 ) THERE are three unreported decisions of this Court to which our attention has been invited. The first decision is in Special Civil Application No. 470 of 1970 decided by Mr. Justice D. A. Desai on 8th July 1970. (Patel Khemabhai Hargovan v. Jantral Village Panchayat. In that case the question whether the publication of the election notification in the Official Gazette was mandatory under sub-rule (1) of rule 7 arose. Construing sub-rule (1) of rule 7 in light of sub-sec. (1) of sec. 18 it has been held by the learned Judge that a duty is cast upon the Taluka Development Officer to appoint the date for the election of the members of a Gram Panchayat. After he appoints such a date a further duty is cast upon him to notify that date and publish that notification in the Official Gazette. In that case as in the instant case the election notification under sub-sec. (1) of sec. 18 and the election time table under sub-rule (2) of rule 7 were issued by the Election Authority on the same day. While holding that publication in the Official Gazette is mandatory the learned Judge has relied use on two different modes of publication which sub-rules (1) and (2) of rule 7 prescribe. A further question which arose before him was whether the election time table fixed by the Election Authority under sub-rule (2) of rule 7 could be valid if its publication as required by sub-rule (2) of rule 7 preceded the publication of the election notification in the Official Gazette. The difference in language which appealed to the learned Judge in that decision is one of the factors which renders the publication of the election notification in the Official Gazette mandatory. It is not the sole reason. In the fore-going paragraphs of this judgment we have pointed out other factors which go to fortify the conclusion recorded by the learned Judge that the publication in the Official Gazette of the election notification is mandatory. Therefore so far as the question whether the publication of the election notification in the Official Gazette is mandatory is concerned the conclusion recorded by him is quite correct. But the further conclusion which he has recorded is that non-compliance with this mandatory requirement necessarily renders the election void. That in our opinion is not a correct conclusion. Therefore so far as the question whether the publication of the election notification in the Official Gazette is mandatory is concerned the conclusion recorded by him is quite correct. But the further conclusion which he has recorded is that non-compliance with this mandatory requirement necessarily renders the election void. That in our opinion is not a correct conclusion. It appears that the attention of the learned Judge was not invited to the legislative intent which sub-sec. (2a) of sec. 24 of the Gujarat Panchayats Act discloses. Non-compliance with every mandatory requirement does not necessarily render all subsequent proceedings null and void. There maybe certain mandatory requirements which may per se nullify all further proceedings or steps taken in the matter. To illustrate this proposition if an election notification in respect of a Gram Panchayat is issued by an officer other than the Taluka Development Officer who is the officer designated by the statute to issue it will be per se void and without jurisdiction and any steps taken subsequent thereto will be rendered null and void because such an issuance of a notification lacks the very source of its authority and is without foundation. The issuance of such a notification will not be under the Act but it will be de hors the Act. In other words if the first step which is taken in the election process is vitiated or polluted at its very source all further steps which are taken pursuant to that first step will become null and void. There are certain other mandatory requirements which if not complied with do not necessarily nullify all further steps taken in the matter. Whether further subsequent steps taken in a matter are nullified on account of the non-compliance with such a mandatory requirement will in such cases depend upon the fact whether any prejudice has been caused to any one by such non-compliance. Such prejudice may be inherent in the circumstances of a case or may have to be established on proof of facts. ( 20 ) IN the instant case non-compliance with mandatory requirement of sub-rule (1) of rule 7 does not belong to the first category. It belongs to the second category. Therefore it is to be judged in light of the facts on record. In the instant case we find no inherent prejudice to the petitioner or to any one else. ( 20 ) IN the instant case non-compliance with mandatory requirement of sub-rule (1) of rule 7 does not belong to the first category. It belongs to the second category. Therefore it is to be judged in light of the facts on record. In the instant case we find no inherent prejudice to the petitioner or to any one else. We have no evidence to show that any prejudice has been caused to any one. The learned Judge in the aforesaid unreported judgment did not enter into this aspect of the question. On the basis of the arguments advanced before him he arrived at the conclusion that noncompliance with mandatory requirement of sub-rule (1) of rule 7 ipso facto rendered the elections void. We are unable to agree with the second part of his conclusion. . ( 21 ) THE next decision to which our attention has been invited is in Special Civil Application No. 626 of 1971 decided by Mr. Justice Diwan on 28th November 1972 (Patel Amarshibhai Dharamshi v. Kadia Kantilal Damodar ). A similar question arose before him. He has construed sub rule (1) of rule 7 as laying down a mandatory requirement of publication of the election notification in the Official Gazette. He too has distinguished between different phraseologies used by the rule-making authority in sub rules (1) and (2) of rule 7 and arrived at the conclusion that the requirement laid down by sub-rule (1) is a mandatory requirement and noncompliance therewith renders all further election processes null and void. The reasoning which appealed to him is essentially the same as one which appealed to Mr. Justice D. A. Desai in Special Civil Application No. 470 of 1970 to which we have earlier referred. For the aforesaid reasons we agree with the view of Mr. Justice Diwan that the requirement of publication of the election notification in the Official Gazette is a mandatory requirement but we are unable to agree with him that non-compliance therewith ipso facto renders the election void. ( 22 ) THE third decision to which our attention has been invited and which takes a contrary view is in Special Civil Application No. 1168 of 1968 decided by Mr. Justice M. P. Thakkar on 20th August 1971. (Shankarbhai Joitaram Patel v. Vihor Village Panchayat ). ( 22 ) THE third decision to which our attention has been invited and which takes a contrary view is in Special Civil Application No. 1168 of 1968 decided by Mr. Justice M. P. Thakkar on 20th August 1971. (Shankarbhai Joitaram Patel v. Vihor Village Panchayat ). He has taken the view that the publication of the election notification in the Official Gazette is purely directory and therefore non-compliance therewith does not render the election void. He has construed the expression shall used in sub rule (1) of rule 7 as an expression which is not decisive of the matter and which is devoid of force or compulsion - The reason which has appealed to him for taking that view is that in villages there is hardly any one who reads the Official Gazette. In villages people read notices and notifications affixed at the village Chavdi rather than the Official Gazette. According to him therefore the publication in the Official Gazette serves no substantive or special purpose at all. The next reason which has weighed with him is that once the people have expressed their will in a democratic election and elected their representatives to a democratic body the election should not be set at naught merely on the ground that the election notification with which the election process started was not published in the Official Gazette. Why the will of the people expressed at a democratic election should not be set at naught has been reasoned out by him on more than one ground. In that case the election notification under sub-sec. (1) of sec. 18 and the election time table under sub-rule (2) of rule 7 were contained in the same notification. It was argued before him that it was fatal to the validity of the elections. He has negatived that contented by holding that separate publication of election notification and the election time table is not a ritual which must be performed with orthodox rigidity. In his opinion failure to publish the election notification in the Official Gazette does not render the election void. So far as the first part of his view is concerned we are unable to agree with him that the publication in the Official Gazette is directory. In our opinion such a publication serves certain purposes. They were it appears not brought to his notice. So far as the first part of his view is concerned we are unable to agree with him that the publication in the Official Gazette is directory. In our opinion such a publication serves certain purposes. They were it appears not brought to his notice. Therefore in as much as he holds that the publication in the Official Gazette is directory he does not in our opinion lay down the correct law. In so far as he has held that the failure to publish it in the Official Gazette does not necessarily render the election void we for the reasons stated in this judgment agree with him. ( 23 ) IN light of the view which we have recorded the first contention raised by Mr. Takwani is rejected. ( 24 ) THE second contention which he has raised is that on 30th October 1972 the Taluka Development Officer issued the cancellation notification by which he cancelled the election notification and the election time table published by him on 23rd October 1972. On 3rd November 1972 the Taluka Development Officer issued revised notification by which he cancelled the cancellation notification of 30 October 1972 and revived the election notification and the election time table published by him on 23rd October 1972. Mr. Takwani has contended before us that the effect of the cancellation notification was to cancel the election notification and the election time table and that they cannot be revived later on. According to him what is dead cannot be revived. No life can be injected into a dead body. When we read the cancellation notification it appears clear to us that he cancelled thereby all his earlier notifications. The election notification and the election time table were the only two earlier notifications which were issued by him. No doubt the cancellation notification appears to be in the form of a letter written by him to the Talati cum Mantri of the village. But the footnote appended to that letter shows that copies thereof were forwarded to the District Development Officer Jamnagar the Collector Jamnagar the Mamlatdar Lalpur the Manager Government Press Rajkot for publication the Sarpanch of the village concerned and the Election Officer. This cancellation notification also purports to state that the term of Haripar Gram Panchayat has been extended by six months. We are not concerned with that part of the notification. This cancellation notification also purports to state that the term of Haripar Gram Panchayat has been extended by six months. We are not concerned with that part of the notification. It may be one of the reasons which the Taluka Development Officer may have taken into account for issuing the cancellation notification. We have no doubt in our minds that the effect of the cancellation notification was to cancel the election notification and the election time table issued by the Taluka Development Officer on 23rd October 1972. With the cancellation notification the Taluka Development Officer in so far as the impugned elections were concerned had to proceed on a clean slate. On 3rd November 1972 he issued revival notification. It is also in the form of a letter addressed to the Talati cum Mantri of the village copies whereof were forwarded by him to all those to whom he had addressed the copies of the cancellation notification and the Manager Government Press Rajkot was one of them. It is clear that the revival notification was also issued and published for the information of the public. Mr. Takwani has contended before us that by such a revival notification he cannot revive what he has wholly cancelled. According to him the Taluka Development Officer ought to have published a fresh election notification under sub-sec. (1) of sec. 18 and a fresh election time table under sub-rule (2) of rule 7 in accordance with the provisions of sub-rule (4) of rule 7. The argument which Mr. Takwani has advanced before us turns more on form than on substance. If by the revival notification the Taluka Development Officer can produce an effect similar to one which he will produce by issuing fresh election notification and election time table hardly anything can be urged against the revival notification. In election matters a Court is very much disinclined to interfere unless there is a substantive contention raised against its validity. No formal objection to its validity can be entertained In this view of the matter we have got to turn to the revival notification and find out what it purported to do and what people understood thereby. It inter alia stated that the elections to those Gram Panchayats in respect of which the notifications were already published were to be held and that further proceedings according to law had to be adopted. It inter alia stated that the elections to those Gram Panchayats in respect of which the notifications were already published were to be held and that further proceedings according to law had to be adopted. There is no doubt in our mind that reference in the revival notification to certain other notifications is a reference to the election notification and the election time table. Any one who had read the election notification the election time table and the cancellation notification must have on reading the revival notification come to the conclusion that the revival notification was reviving the election notification and the election time table published on 23rd October 1972. Indeed if the Taluka Development Officer had published a fresh election notification and a fresh election time table it would have been much better. But by not publishing it and by issuing the revival notification he has not done something which per se goes to vitiate the entire elections. ( 25 ) MR. Takwani has argued that the maximum which can be said in regard to the revival notification is that the election notification and the election time table came to be published again on 3rd November 1972. That submission of his is correct. In that view of the matter contends Mr. Takwani. sub-rule (4) of rule 7 was violated. It provides thus;"not less than fifteen days before the last date fixed for the nomination of candidates the Election Authority shall give a public Notice in writing of the intended election inviting nominations of candidates for the election and specifying the place where nomination papers are to be delivered. . . . . "the rest of sub-rule (4) is not material for the purpose of the present case. Sub-rule (4) of rule 7 requires that nomination of candidates must be invited by a public notice given not less than 15 days before the last date fixed for receiving nominations of candidates. 9th November 1972 was the date which was earlier fixed by the election time table for receiving nominations by the Taluka Development Officer. If the election time table had been published again on 3rd November 1972 when the revival notification was published by the Taluka Development Officer it would have left only six days time for receiving nominations of candidates as against 15 days required to be left for the purpose by sub-rule (4) of rule 7. Mr. If the election time table had been published again on 3rd November 1972 when the revival notification was published by the Taluka Development Officer it would have left only six days time for receiving nominations of candidates as against 15 days required to be left for the purpose by sub-rule (4) of rule 7. Mr. Takwani has further contended that if the Taluka Development Officer had published a fresh election notification under sub-sec. (1) of sec. 18and the election time table under sub-rule (2) of rule 7 he would have applied his mind to this aspect of the matter and acted in accordance with the provisions of sub-rule (4) of rule 7. There is no doubt about the fact that by the revival of the election notification and the election time table by the revival notification issued on 3rd November 1972 the Taluka Development Officer had violated sub-rule (4) of rule 7. If he did so does it per se nullify the entire elections ? In order to persuade us to answer this question in the affirmative he has invited our attention to the decision of the Rajasthan High Court in Anokhmal Bhurelal v. Chief Panchayat Officer Rajasthan Jaipur and others A. I. R. 1957 Rajasthan 388 A Division Bench of the Rajasthan High Court in that case has construed the expression atleast seven days before the election used in rule 4 of the Rajasthan Panchayat Election Rules 1954 The said rule 4 provided thus :"the Returning Officer shall atleast seven days before the date of election announce for the information of the Panchayat Circle by notice and in such other manner as the Chief Panchayat Officer may direct the number and names of wards if any the number of Panchs to be elected from each ward and from the entire Panchayat Circle and the date time and place of election". It is in context of the aforesaid provision of rule 4 that the expression atleast 7 days before the date of election used in the said rule came up for construction before the learned Judges. They have held that the aforesaid requirement of rule 4 of the Rajasthan Panchayat Election Rules is a mandatory requirement and that disregard thereof renders the entire elections illegal. The argument which Mr. They have held that the aforesaid requirement of rule 4 of the Rajasthan Panchayat Election Rules is a mandatory requirement and that disregard thereof renders the entire elections illegal. The argument which Mr. Takwani has advanced before us no doubt receives some support from this decision of the Rajasthan High Court but it cannot conclude the question. We have sub-sec. (2a) of sec 24 in the Gujarat Panchayats Act which unmistakably shows that the Legislature has not regarded a breach of any or the rules made under sec. 323 of the Gujarat Panchayats Act so mandatory as to nullify the entire elections. Mr. Takwani has not been able to show us that Rajasthan Panchayats Act has a similar section and yet the Rajasthan High Court has taken the aforesaid view. In our opinion therefore in light of the provisions of sub-sec. (2a) of sec. 24 the principle laid down by the Rajasthan High Court in the aforesaid decision cannot be applied to the instant case. 26 He has next contended before us that the language of sub rule (4) of rule 7 is negative. It therefore indicates that sub-rule (4) has got to be complied with. Sub-rule (4) begins with the words not less than fifteen days before the last date fixed for the nomination of candidates. . The language is indeed emphatic. We hardly come across such a negative language which conveys the intention of the Legislature so pointedly and forcefully and yet we have to construe that negative expression used in sub-rule (4) of rule 7 in light of the legislative intent disclosed by sub-sec. (2a) of sec. 24. 27 There are two reasons which weigh with us in holding that the non-compliance with the provision of sub-rule (4) of rule 7 does not per se nullify the entire election. The legislative intent disclosed by sub-sec. (2a) of sec. 24 is one. The other reason flows from certain basic facts relating to the elections. (2a) of sec. 24. 27 There are two reasons which weigh with us in holding that the non-compliance with the provision of sub-rule (4) of rule 7 does not per se nullify the entire election. The legislative intent disclosed by sub-sec. (2a) of sec. 24 is one. The other reason flows from certain basic facts relating to the elections. Where elections have been held where people have expressed their will freely and fairly where no adverse effect has been produced on the elections by a shorter period allowed by the Taluka Development Officer to voters and candidates than sub-rule (4) of rule 7 prescribes can it be said that the mandatory requirement laid down by sub-rule (4) of rule 7 is so fundamental and basic in character that it goes to the root of the elections and vitiates the entire election ? It is extremely difficult for us to say that the non-compliance with the mandatory provision of sub-rule (4) will by itself produce such a result. We are not able to conceive of any reason which can persuade us to hold that the requirement of sub-rule (4) of rule 7 is so fundamental that it must necessarily vitiate the election even though no adverse or prejudicial effect has been produced by it on them. When we express this view we do not mean to say that the requirements of sub-rule (4) of rule 7 should not be strictly complied with. They are meant for strict compliance. They have got to be given effect to. But in a given case if effect has not been given to it can it be said that it nullifies the entire election ? We are of the opinion that it is not such a fundamental requirement the non-compliance with which necessarily renders the election void. These are the two reasons which weigh with us in recording the aforesaid conclusion. 28 In Ranchhodbhai Jethabhai v. Purshottam Galabhai and another 10 Gujarat Law Reporter I the following question arose before a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice D. A. Desai. In that case the validity of the election of a Sarpanch and a Upa-Sarpach of a Gram Panchayat was challenged. Rule 6 of the Gujarat Gram and Nagar Panchayat (Sarpanch and Upa-Sarpaach Chairman and Vice-Chairman) Election Rules 1968 came up for consideration before this Court. Justice D. A. Desai. In that case the validity of the election of a Sarpanch and a Upa-Sarpach of a Gram Panchayat was challenged. Rule 6 of the Gujarat Gram and Nagar Panchayat (Sarpanch and Upa-Sarpaach Chairman and Vice-Chairman) Election Rules 1968 came up for consideration before this Court. It provided that not less than two hours before the time fixed for the meeting for the election of a Sarpanch or as the case may be a Chairman any member of the Panchayat may nominate any other member for election as Sarpanch or Chairman and deliver to the Presiding Officer a nomination paper in Form A appended to those rules signed by himself as a proposer. The language used in the aforesaid rule 6 is also negative inasmuch as it begins with the expression not less than two hours before the time fixed It was contended in that case that the negative form of expression brings out forcefully the imperative character of the requirement laid down by it. Therefore if a nomination was filed not less than two hours before the time fixed for the meeting for the election of a Sarpanch it would be invalid. This High Court in that case has held that the negative expression used in the said rule 6 prescribed a mandatory requirement which has got to be complied with but has not held that the non-compliance therewith is so mandatory in character that it would per se render the election void. This Court indeed held in that case that the election of the Sarpanch in that case was void because if the nomination which was filed after the expiry of the period prescribed by rule 6 was rejected the other candidate would have been elected uncontested under rule 9 of the said rules. It is clear therefore that the non-compliance with the mandatory requirement of rule 6 led to quashing of the election because of the prejudice which was caused to the other candidate. ( 26 ) SO far as sub-rule (4) of rule 7 of the Election Rules is concerned we think that unless in a given case some prejudice or material effect has been produced by its non-compliance on the result of the election the election is not rendered null and void. Prejudice may be inherent or it may have to be proved by evidence. Prejudice may be inherent or it may have to be proved by evidence. There may be a startling situation which points to an inherent prejudice which it has produced. As for instance if a Taluka Development Officer issues election time table on the first day of a particular month and fixes 2nd or 3rd day of that month for receiving nominations in violation of the requirement of sub-rule (4) of rule 7 prejudice which it will cause will be inherent. It will be impossible for any candidate to consult his constituency in a day or two and make up his mind whether he should contest the election or not. Similarly it would be difficult for a constituency or any part thereof in a day or two-to decide upon a fit candidate which it will put up for representing it in a Panchayat. If there is such a violation of sub-rule (41 of rule 7 prejudice is inherent and the election held under such circumstances will be completely null and void. There may be cases where there may not be such inherent prejudice. In such a case any person who complains of the breach of sub rule (4) of rule 7 has to show what prejudice has been caused to him or to the constituency. As for instance if a Taluka Development Officer allows 12 days or 14 days between the publication of the election timetable and the last date for receiving nominations it cannot be said that it will cause inherent prejudice to any voter candidate or constituency. If prejudice has however been caused to any one; he must prove it. . . . . . . . . . ( 27 ) IN the result we find no substance in this petition. The petition therefore fails and is dismissed. Since in this petition the questions which we have decided have turned upon the construction of sub-rules (1) and (X) of rule 7 and since there was conflict of decisions of this Court in that behalf which we have resolved we direct that there shall be no order as to costs of this petition. Petition dismissed. .