WANCHOO, C. J.—This is an application by Poonma and others under Art. 226 of the Constitution for issue of a writ of mandamus and prohibition and it is prayed that the Gram Panchayat, Koselao, be prohibited from functioning as such. It is further prayed that the Rajasthan Government be prohibited from realizing the fine imposed on the applicants.

2. The case of the applicants is that a body of persons was functioning as Gram Panchayat, Koselao, with Sardarmal Jain as Sarpanch. This Panchayat passed an order on the 3rd of July, 1950 requiring the applicants to remove their fencing from certain baras in their possession on the ground that the land enclosed in the fencing was open space of the village and part of village paths. Thereafter, on the 12th of July, 1950 the Panchayat imposed fines on the applicants on the ground that they had not carried out the order dated 3rd of July, 1950. These fines were imposed under sec. 17 (4) of the Marwar Village Panchayats Act, 1950. The applicants say that they approached the Sub-Divisional Officer, Bali, against the order of the Panchayat but failed to get any redress. Thereafter they moved the Minister incharge in revision. For some time the Minister incharge ordered stay of execution of the said order but later dismissed the revision. The Tehsildar of Bali then took steps to recover the fines and consequently the present application has been filed.

3. The applicants raised three points in support of their case. But they gave up one of them relating to the non-issue of notification as required by sec. 4 of the Panchayats Act. The remaining points which have been urged on their behalf are (i) that as no order was published as required by rule 8 of the Rules framed under sec. 75 of the Panchayats Act, the Panchayat was not properly constituted and, therefore, all proceedings before the Panchayat were null and void and it should be prohibited to function as such; and (ii) that the Panchayat was acting without jurisdiction in passing the order under dispute.

4. The application has been opposed on behalf of the Gram Panchayat as well as by the Rajasthan State. The main contentions on behalf of the opposite parties are that rule 8 of the Panchayat Rules is merely directory and not mandatory and its non-compliance does not invalidate the functioning of the Panchayat, and further that the Panchayat had jurisdiction to act in the manner that it did.

5. We shall first examine the arguments with relation to rule 8 which is as follows :—

"When a Panchayat has been constituted, the Collector shall issue an order by publication in the Government Gazette stating:—

(a) the name and situation of the Panchayat area;

(b) and the name of the Panches and Sarpanch."

The contention of the applicants is that this was not done and, therefore, the Panchayat which started functioning from March, 1950 was not properly constituted as the provision is mandatory. We are of opinion that the publication provided by the rule is merely for the information of the public. The Panchayat is established by a notification under sec. 4 of the Act and, thereafter elections are held, and when the elections are over, rule 8 enjoins on the Collector to publish in the Government Gazette the names of the Panchas and Sarpanch and the name and situation of the Panchayat area. So far as the name and situation of the panchayat area is concerned, that is also given in the notification under sec. 4 by which the Panchayat is established and this rule, thus, merely provides in part for repetition of what has been done under sec. 4 already. The other part of the rule provides for the publication of the names of the Panches and Sarpanch obviously for the information of the public. We are of the opinion that even if there is any irregularity in strict compliance of this part of the rule, that would not vitiate the constitution of the Panchayat. In this particular case, we may mention that the notification has been made but it was made in November, 1952

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