Indian Kanoon - Search engine for Indian Law

8. The Election Commission, thereafter, considered the matter and found that such mistakes have been committed in different constituencies. It has also found certain other infirmities, as a result of which the election could not be held or the final declaration of the result could not be made. The Election Commission decided to hold fresh re-poll and fixed 20-1-2002 as the date of the election by its communication dated 19-11 -2001 (Annexure 7 to memo of appeal).

9. The writ petitioner-respondent No. 6 thereafter, filed the present writ application on 9-1-2002, out of which this appeal arises. On 16-1-2002, this Court by an interim order stayed the election process and issued a notice to officials of the Commission to show cause why they be not punished for disobedience of the earlier order dated 20-7-2001. Thereafter, the matter as finally heard and the impugned judgment has been delivered.

11. Learned Counsel appearing for the appellant raised two points. Firstly, he submitted that in view of the provision contained in Article 243-O(b) of the Constitution of India and Section 140 of the Bihar Panchayat Raj Act, 1993 (for short 'the Act'), the learned Single Judge should not have interfered with the decision taken by the Election Commission to cancel the election and hold the re-poll as the same was passed in exercise of the power of superintendence, direction and control vested in him in terms of the provision contained in Article 243K of the Constitution of India and Section 136 of the Act and the same was just and proper decision and was made with the sole purpose of completing the process of election and also that the said decision has not the effect of interrupting, or obstructing or proctracting the election proceeding. Secondly, he submitted that the learned Single Judge was not justified in holding that the direction of re-poll by the Election Commission was in breach of the earlier order of the High Court, as by earlier order the High Court had not directed for declaration of the result on the basis of the earlier poll held, on the other, it has directed to complete the process of election and the process of election begins from the issuance of the notification till the declaration of the result and during this period, if the Election Commission decides to hold re-poll after taking into consideration the fact situation of the matter, the same does not amount to disobedience of the earlier order.

13. Learned Counsel appearing for the writ petitioner-respondent submitted that in view of the Bar created by the provisions contained in Article 243-0(b) of the Constitution of India and Section 140 of the Act, irregularity or illegality in the election due to wrong printing of ballot papers could have been challenged after the poll through the election petition. The learned Single Judge has rightly held that the Election Commission has no power to order for re-poll once the process of election has started. He also submitted that once there was earlier direction of this Court in the earlier writ application to complete the process of election, the only thing, that was required to be done by the Election Commission, was to count the votes and declare the result and, therefore, direction for re-poll was made in disregard to the order passed by this Court.

27. Similar question arose for consideration in the case of Mohinder Singh Gill (supra) and the apex Court held that "the conclusion is, therefore, irresistible that the jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll because prima facie purpose of such re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. Whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the High Court as an Election Tribunal. If the regular poll, for some reasons, has failed to reach the goal of choosing the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. Hence, the writ application challenging the cancellation coupled with re-poll amounts to calling in question a step in election and is, therefore, barred by Article 329(b).