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7. During the course of the hearing of this matter on 8.4.2014, Sri.K.Ramakumar, learned Senior Counsel for the petitioner contended that the objections as regards the maintainability of the Writ Petition are untenable and that the Writ Petition under Article 226 would be maintainable in this case. 

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He primarily contended that though the general approach is that the plenary bar under Article 329(b) would operate against entertaining of applications of judicial review initiated after the commencement of the election process and upto the conclusion of the election process, the Supreme Court in Ashok Kumar's case (supra) and Mohinder Singh Gill's case (supra) has held that there is a vestige of discretionary jurisdiction that can be exercised by superior constitutional courts on certain areas as delineated in those rulings. In this regard, the learned Senior Counsel has placed reliance on para 20 of Ashok Kumar's case reported in 2000 (8) SCC 216, wherein after relying on the principles laid down in para 29 of Mohinder Singh Gill's case reported in 1978 (1) SCC 405, the Apex Court has made a distinction between proceedings interfering with the progress of the election and those which accelerate the completion of the election that acts in furtherance of an election. Sri.K.Ramakumar, learned Senior Counsel, in his inimitable style of persuasion, has thus urged that in view of those principles, the bar of Article 329(b) will not be attracted in this case, etc.

To explain further the types of cases, wherein the judicial review intervention could be justified, the Apex Court further illustrates one such scenario in paragraph 21of Ashok Kumar's case (supra) as  w.p.c.10503/14 - : 36 :-

follows:

"21. A third category is not far to visualise. Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance secured, material evidence may be lost. Before the result of the election is declared, assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. ....."

On the aforementioned premise, the Apex Court held in para 30 of Mohinder Singh Gill's case (supra) that the plenary bar of Article 329(b) rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion, (2) the provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. The decision in Durga Shankar Mehta v. Thakur Raghuraj Singh reported in AIR 1954 SC 520, was relied to hold that once the Election Tribunal has decided, the prohibition is extinguished and the the Supreme Court's overall power to interfere under Article 136 springs into action. In Hari Vishnnu Kamath's case (AIR 1955 SC 233) upheld the rule in Ponnuswami's case (supra) excluding any proceeding, including one under Article 226, during the on-going process of election, understood in the comprehensive sense of notification down to declaration and beyond the declaration of results comes the election  w.p.c.10503/14 - : 50 :-

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overruling consideration for welfare of the constituency and considering the democracy is called for. The Apex Court held therein that neither the court should turn a blind eye to the controversies which has an reason neither should assume a roll of would do and that the two extremes have to be avoided in dealing with the election disputes. As held by the Apex Court in paragraph 20(ii) of Ashok Kumar's case (supra) a dispute raised impugned amount election if it subserves the progress of the election and facilitates competition of the election and where the Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of election and such a concept may wholly unwarranted by constitution and wholly unsustainable under law. So in order to establish the necessity for interference of judicial review in the facts and circumstances of this case, the petitioner has to necessarily establish that the impugned Ext.P1 circular/ Annexure A order is passed by the 1st respondent Election Commission of India is one which far from accomplishing and establishing the process of election, which may thwart the  w.p.c.10503/14 - : 65 :-