JUDGMENT : R.N. Misra, J. - Both these applications relate to the election for filling up the casual vacancy arising in the office of Chairman, Galadpur Panchayat Samiti. within the district of Cuttack and are, therefore, disposed of by a common judgment. 2. One Kailash Chandra Pani was the Chairman of the aforesaid Panchayat Samiti and upon his death a bye-election was notified under the Orissa Panchayat Samiti (Conduct of Election) Rules, 1970, fixing the election on 16-11-1973. The Sub-divisional Officer of Kendrapara was appointed as the Election Officer by the Collector of Cuttack (opposite party No. 2). According to the election programme, nominations were to be filed on or before 1-11-1973, scrutiny of the nomination papers was to be made on 3-11-1973 and notice of withdrawal of nomination could be given before 8.11-1973 (vide Annexure-D. The Petitioner alleges that he, opposite parties 3 to 5 and two others filed their nomination paper for the election. The Petitioner and opposite party 119. 4 belonged to the Ruling Congress Party. Opposite party No. 4 had been chosen as the official nominee and the Petitioner had filed his nomination only as a dummy candidate. It had been stipulated that the Petitioner would with draw his nomination. On 3-11-1973 the nominations were scrutinised and six candidates including the Petitioner and opposite parties 3, 4 and 5 were found duly nominated. The Petitioner was advised with reference to Rule 12 of the Election Rules that it was open to him to withdraw his candidature at any time before 12th of November, 1973. On 12-11-1973, the Petitioner appeared before the opposite party No. 1 and wanted to give notice of withdrawal of his nomination. The opposite party No. 1 refused to accept the withdrawal saying that the time appointed for the purpose was already over. The Petitioner came to find that the opposite party No. 1 contrary to Rule 12 had fixed 8-11-1973 as the last date for withdrawal of nomination. The Petitioner?s name, therefore, continued as a candidate. The result of the election was as follows: Petitioner - 72 Opp. party No. 3-83 Opp. party No. 4-51 Opp. The Petitioner came to find that the opposite party No. 1 contrary to Rule 12 had fixed 8-11-1973 as the last date for withdrawal of nomination. The Petitioner?s name, therefore, continued as a candidate. The result of the election was as follows: Petitioner - 72 Opp. party No. 3-83 Opp. party No. 4-51 Opp. party No. 4-3 (the description of parties is in terms of O.J.C. No. 1017 of 1973) According to the Petitioner, his name continued to be on the ballot paper notwithstanding his anxiety to withdraw from the contest and if he had been permitted to withdraw and opposite party No. 4 alone contested on behalf of the party, the result of the election would have been very different. The illegal act of the opposite party No. 1, it is contended by the Petitioner, has brought about ignominy of defeat so far as the Petitioner himself is concerned and has also resulted in the defeat of the Party candidate notwithstanding the fact that the Petitioner and opposite party No. 4 together have polled much more than the successful candidate. 3. On behalf of the opposite parties 1, and 2, learned Additional Government Advocate appears and a counter affidavit has been filed by the District Panchayat Officer. The opposite party No. 3 has pot entered appearance in spite of service of notice. Mr Palit appears for opposite party No. 4 (Petitioner in O.J.C. 1064 of 1973). 4. Rule 12 of the aforesaid Election Rules is as follows: It shall be open to a duly nominated candidate for the office of the Chairman, Panchayat Samiti to withdraw his candidature by presenting on application in person in the form prescribed in Schedule IV to the Election Officer at least three clear days before the date fixed for the poll. On such withdrawal if there were only two contesting candidates including the person withdrawing candidature, the other candidate shall be declared elected. If on the other hand the number of candidates including the person withdrawing candidature exceeds two, the polling shall proceed for the remaining candidates. Rule 3 authorities the Election Officer to notify the election and runs thus: (1) The Election Officer shall, at least three weeks before the date fixed for election, issue notice in the form prescribed in Schedule-I, calling for names of candidates for the office of the Chairman of each of the Panchayat Samitis. Rule 3 authorities the Election Officer to notify the election and runs thus: (1) The Election Officer shall, at least three weeks before the date fixed for election, issue notice in the form prescribed in Schedule-I, calling for names of candidates for the office of the Chairman of each of the Panchayat Samitis. Such notices shall be published in the notice board in each of the offices of the Grama Panchayats and Panchayat Samitis within the district and also in the notice board of the Collector. Schedule I is the form prescribed for issue of the notice calling for nomination of candidates and is to the following effect: Schedule-I. (See Rule 3) Notice calling for nomination of, candidate for the office of the Chairman of...Panchayat Samiti. Notice, is hereby given that. (1) on election is to be held for the office of the Chairman of...Panchayat Samiti. (2) forms of nomination papers may be obtained at the office of the officers specified in serial No. 6 between the hours of...and...on (date) at...(place). (3) Nomination papers may be delivered between the hours of 11 in the morning and 3 in the afternoon by a candidate or his proposer to the officer specified below at his office on any date not later than the...day of.... (4) the nomination papers will be taken up for scrutiny at...hours on...(date) at...(place). (5) Notice, of withdrawal of candidature may be delivered by a candidate to the officer specified below at his office before...on.... Table Designation of Officer (6) Election Officer Location of Office. (7) In the event of the election being contested the poll will take place on...between the hours. of... Date... Election Officer place...Samiti. Column (5) of this notice postulates the fixing of a date for delivery by a candidate of notice of withdrawal of candidature for which no provision is made in Rule 3. Rule 12 refers to withdrawal. As would appear from the Rule, already extracted, the candidate has the option, at least three clear days before the date fixed for polling, to give notice of withdrawal. Schedule IV is the prescribed form running thus: SCHEDULE IV (see Rule 12). (Notice of withdrawal) Election to the.... To The Election Officer I...a candidate nominated at the above election do hereby give notice that withdraw my candidature. Place...Signature of the Date...candidate. This notice was delivered to me at my office at.... (hours) on(date) by...(name)date... Schedule IV is the prescribed form running thus: SCHEDULE IV (see Rule 12). (Notice of withdrawal) Election to the.... To The Election Officer I...a candidate nominated at the above election do hereby give notice that withdraw my candidature. Place...Signature of the Date...candidate. This notice was delivered to me at my office at.... (hours) on(date) by...(name)date... Election Officer Receipt of notice of withdrawn (To be handed over to the person delivering the notice). The notice of withdrawal of candidature by a candidate at-the election to thewas delivered to me at my office at (hours) on...(date). Election Officer. In view of the provision in Rule 12, allowing withdrawal to be made at any point of time before three clear days of poll, in the instant case, the fixing of the time limit for withdrawal up to the 8th November was unwarranted, and must be, taken to be on act in excess of jurisdiction. Law is well-settled that on election to a public office under a statute has to be done in terms of the statute and since a candidate has the option to withdraw at any point of time until there is a gap of three clear days prior to poll is was not open to the Election Officer to appoint a date for the purpose contrary to Rule 12. 5. There has been some amount of controversy as to whether the Petitioner attempted to give notice of withdrawal. The Petitioner in clear terms has averred that he did. The counter affidavit comes from a person other than the Election Officer and he is not expected to have personal knowledge of the matter. There is force in the contention of Mr. Misra for the Petitioner: in the first application that there would be no material regarding the attempt of the Petitioner in the record and the counter affidavit by the Grama Panchayat. Officer with reference to the record is really not a very material thing so far as the denial of the Petitioner?s attempt is concerned. We would, therefore, hold as a fact that the Petitioner did attempt to withdraw his candidature on the 12th of November and the same was refused by the Election Officer on the ground that the Gate appointed for the purpose was over. We would, therefore, hold as a fact that the Petitioner did attempt to withdraw his candidature on the 12th of November and the same was refused by the Election Officer on the ground that the Gate appointed for the purpose was over. As the election was notified for 16th of November, the offer of withdrawal on 12th was in accordance with Rule 12 and, therefore, the Election Officer was not justified in refusing to accept it. 6. It is true that it is difficult at this point of time to hold as to what the result of the election would have been if the Petitioner was not in, the arena of contest. But in the facts of the case, we are led to hold that the result of the election has been materially affected on account of the Petitioner participating therein against his desire. We would accordingly annul the election and direct that steps shall be taken to hold a fresh election in accordance with law. A writ of mandamus win accordingly issue for that purpose. 7. Before parting with this case, we are inclined to draw the attention of the appropriate authorities to the fact that in column 5 of the 1st. Schedule, provision has been made for fixing a time limit for withdrawal. Rule 3 does not contemplate of such a position. Rule 3 could be suitably amended to covet such a matter and now the Rule 12 has been amended and the time limit of two days after that scrutiny is over and the list of validly nominated candidates is published has been fixed, there is no ambiguity left in the matter. Both these writ applications are accordingly allowed. There will be no order as to costs. P.K. Mohanti, J. 8. I agree. Final Result : Allowed