Tuesday, April 16, 2013

Mad HC: Setting aside Chennai Civic Elections for 99 Wards out of 155 Wards

Mad HC: Setting aside Chennai Civic Elections for 99 Wards out of 155 Wards

Sources: 



This case law has been reported in 2007(1) CTC 705, DB

Madras High Court

All India Anna Dravida Munnetra ... vs The State Election Commissioner on 12 January, 2007

DATED : 12.01.2007

CORAM

THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA

and

THE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLA

W.P. Nos.39400, 39457, 39458, 39459, 39460, 39462,

39471, 39535, 39595, 39635 & 39713 of 2006

and

M.P. Nos.1 to 6 of 2006 in W.P. No.39400 of 2006

1 & 2 of 2006 in W.P. No.39458 of 2006

1 of 2006 in W.P. Nos.39438, 39459, 39460,

39462, 39471, 39535,

39595, 39635 & 39713 of 2006

W.P. No.39400 of 2006

----------------------

All India Anna Dravida Munnetra Kazhagam

226/275, Avvai Shanmugam Salai

Royapettah,

Chennai 600 014

rep. by its Fisheries Wing Secretary

D.Jayakumar, M.L.A. .. Petitioner

Vs

1. The State Election Commissioner

rep. by D.Chandrasekaran

State Election Commissioner

No.6, Revathy Street

100 Feet Road,

Vadapalani

Chennai 600 026.

2. The Director General of Police

Kamarajar Salai,

Chennai 600 004.

3. The Commissioner of Police

Greater Chennai,

Egmore

Chennai 600 008.

4. The Addl. Commissioner of Police

Greater Chennai,

Egmore

Chennai 600 008.

5. The Dravida Munnetra Kazhagam

'Anna Arivalayam'

Anna Salai,

Chennai 600 018

rep. by its President M.Karunanidhi .. Respondents

W.P. No.39400 of 2006 filed for the issuance of a Writ of Declaration declaring that the election conducted in respect of all 155 wards of the Chennai City Municipal Corporation as null and void non-est-in-law as stated therein.

---------------

For Petitioners :

---------------

Mr. N.Jothi in WP No.39400/06

assisted by Mr.L.P.Shanmugasundaram & Mr. S.Venkatesh

Mr. N.G.R.Prasad, for M/s. Row & Reddy in WP No.39438/06

Mr. G.Devadoss in WP No.39457/06

Mr. T.V.Ramanujun, SC, for Mr. T.V.Krishnamachari in WP 39458/06

Mr. P.Jayaraman, SC, for Mr. R.Ponnuswamy in WP No.39459/06

Mr. Palani Selvaraj (Party-in-person) in W.P. No.39460/06

Mr. R.Abdul Mubeen (Party-in-person) W.P. No.39462/06

Mr. L.Chandrakumar in WP No.39471/06

Ms.Kalpana in WP No.39535/06

Mr. P.Mohamed Ansari in WP No.39595/06

Mr. G.Jeremiah in WP No.39635/06

Mr. M.Yuvaraj in WP No.39713/06

---------------

For Respondents :

---------------

Mr. G.Masilamani, SC, for Mr. N.R.Elango, Spl. G.P.

Mr. K.Alagiriswami, SC, for Mr. V.Srikanth, AGP

Mr. P.S.Raman, AAG, for Mr. M.Dhandapani, AGP

Mr. S.Natarajan, SC, for Mr. J.Ravindran

COMMON ORDER

S.J.MUKHOPADHAYA, J.

'Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done, but must also seem to be done; similarly, elections should not only be fairly and properly held, but also seem to be so conducted as to inspire confidence in the mind of the electors that everything has been done aboveboard and has been done to ensure free elections.' This was observed by the Supreme Court in the case of Rampakavi Rayappa Belagali - Vs - B.D.Jatti & Others reported in 1970 (3) SCC 147. In the said case, the Supreme Court further held : "It will be a sad day in the history of our country that the police and the Government Officers create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like respondent No.1, at the material time was Minister in the State." This is exactly the allegation of the petitioners in these cases, who have alleged that in the matter of the Chennai City Municipal Corporation Elections, the total Government machinery, including the Police, the Government Officers as also the State Election Commission interfered for the benefit of the ruling party, the 5th respondent.

2. On the day i.e., 13.10.06, when polling for election of 155 Ward Commissioners of Chennai Municipal Corporation were in progress, a special mention was made on behalf of one of the petitioner, 'All India Anna Dravida Munnetra Kazhagam' (hereinafter referred to as AIADMK) to the Hon'ble the Chief Justice for immediate hearing of the Public Interest Litigation on the ground that the ruling partymen, i.e., personnel of the 5th respondent, 'Dravida Munnetra Kazhagam' (hereinafter referred to as DMK), are committing serious irregularities, engaged goondas, caused large scale violence and after attacking candidates, partymen and others, captured most of the polling booths in all 155 wards. On an urgent mention, on 13.10.06 itself, the case was taken up and respondents were served with notice and on their appearance the case was heard in detail at the stage of admission for its final disposal.

3. Learned counsel for the petitioner-AIADMK, would submit that the Public Interest Litigation was filed in order to uphold the majesty of law, rule of law and for maintenance of truth and functioning of democracy in the local body elections expected to be conducted under the superintendence, directions and control of the State Election Commission. The basic principle of the Constitution was to achieve the administration of local bodies to serve the public at the basic level for which Part IX (Panchayat) and Part IX-A (Municipality) consisting of Article 243 to 243ZG was incorporated effective from 24.4.93 to achieve a democratic and republican institution from its grass-root level. It is alleged that the first respondent, the State Election Commission has been gained from the clout of the 5th respondent partymen and in connivance with the said party members, has allowed indulgence of large scale violence resulting in booth capturing. According to the petitioner-AIADMK, it had more number of supporters in the Chennai city, considered to be their bastion. The 5th respondent party, known for its atrocities, dare-devil activities, unmindful of law and order, etc., sensing that if the elections are held properly, the 5th respondent party may not succeed and so they pre-planned, scripted, rehearsed and dramatised on 13.10.06, right from the first minute of the poll, namely, 7.00 a.m. itself and adopted the following modus operandi in all 155 wards to rig the polls. The rowdy elements were getting prepared the previous night itself with dangerous weapons like sickles, knives, broad blades, etc., and each of them went on rounds in vehicle allotted to them by the 5th respondent party and went to each booth.

With all such weapons, they entered the booth, attacked the polling agents of other parties mercilessly excluding the agent of the 5th respondent party and by forcible eviction, the booths were captured.

The rowdy elements were followed by the police, ironically not to prevent them, but to protect them while they were perpetrating the crime.

They stood by their side enabling the 5th respondent partymen to stack ballots forcibly seized from the polling officers and started piling it up in the ballot boxes by affixing the seal on the 'Rising Sun' symbol and other fraternal parties i.e., allies of 5th respondent partymen, which are contesting the elections.

4. It is further alleged that when the information of booth capturing was received by the headquarters of the petitioner party, efforts were made to contact the Commissioner of Police, Greater Chennai, the Additional Commissioner of Police, Greater Chennai, etc. From the few, who could be contacted, they were not in a position to respond. The Commissioner of Police and Addl. Commissioner of Police, Greater Chennai, in a parrot-like repetition, went on stating that the polling was peaceful. While conversation was maintained with these officers, the injured candidates, the injured public and the injured partymen of the petitioner were trailing one by one and in batches to the headquarters of the petitioner party. All these were happening within a few minutes of the commencement of the polling. In every ward, such incident took place and hundreds of people were injured. Many of them did not want to get admitted in the Government Hospital, since Tamil Nadu police were well trained to book cases against the very injured persons at the instance of the 5th respondent party. Hence, they were getting their treatment done in private hospitals. According to the petitioner, such incident indicated how public are fearful of Government organisations irrespective of their position i.e., police or hospital or the revenue department. The IAS and IPS officers on whom the total nation is depending, it was alleged that those civil and public administration were hand in glove with the ruling party for small personal benefits. Information started coming from various booths and wards indicating that what was happening was not polling, but a pitch battle, wherein rowdy elements with the support of the 5th respondent partymen ransacked the polling booths and in many places the staff managing the booths were made to flee from the scene to save their lives and, thereafter, the ballot papers were seized and stacked in the ballot boxes in a leisurely manner. It was also submitted that of the persons, who captured the booths, finding some discomfort in operating inside the polling booths, those rowdy elements took the ballot papers and ballot boxes outside the polling booths and in the shade of a tree they started casting the votes in favour of the 5th respondent party symbol, "Rising Sun". A few courageous men and persons of petitioner and other political parties seized those ballot papers from them and brought the same to the headquarters of the petitioner party and the same was exhibited to the Press and public, where it could be seen that the Presiding Officers have appended their signatures already and the same was utilised by the partymen of the 5th respondent to cast the votes.

5. It was further alleged that when the General Secretary of the petitioner's party insisted that she has to vote, respondents made arrangements for police protection as she was under "Z-Plus" security. Hence, the captured booths were relieved for a short interregnum enabling her to enter, wherein no outsider was present, and after she casted her vote and left the scene, the booths were captured again.

6. Further, it was alleged on behalf of the petitioner that the Chennai city was highly surcharged, the voters were terrorised, the candidates of opposition political parties and independent candidates were terrorised, beaten and attacked with dangerous weapons. They fled from their respective wards from which they were contesting and, thereafter, the polling agents, other than the polling agents of the 5th respondent party, were sent out and the booths were captured and votes were casted in favour of the symbol 'Rising Sun' throughout the 155 wards in the same pattern. In many polling booths, advocates were engaged as polling agents and for many wards, party advocates were engaged as chief agents. There were about 27 advocates, who were contesting as candidates of the petitioner-party and all of them have undergone the same experience of either having been beaten or threatened or thrown out or prevented or made to run away from the polling booths. It was submitted that the aforesaid act on the part of the rowdy elements indicated the level at which the police and rowdies were ruling the Chennai Metro and the police were not doing its duty, which is intended for them. It was alleged that in many polling booths, even by 12.00 noon, polling officers declared the elections over and they closed the gates and the police were informing the public that no one should enter the polling booths since all is over. It was in this background, it was submitted, that about forty advocates, who were present at the headquarters of petitioner-party represented to the Hon'ble the Chief Justice and by explaining the same in person and on the permission of the Hon'ble the Chief Justice, the writ petition was hurriedly prepared and filed.

7. It is submitted that similar was the ambience at the time of Madurai Central Assembly by-election, but because of the intervention of the Election Commission of India and the Madurai Bench of the Madras High Court, polling was smooth and peaceful at Madurai, whereas in the local body election, it has been conducted by the State Election Commission, which is totally in the pocket of the ruling party. The very fact that terrorism has been let loose at every polling booth, according to the petitioner, the same is indicative that the polling process was not at all done in accordance with law. It was not a free and fair election.

8. On 13.10.06, in the afternoon when the case was taken up, about thousand persons gathered inside the court premises and after much persuasion about a hundred and odd persons alone were allowed to watch the proceedings inside the court and about ten to fifteen members of lawyers and other persons were produced before the court with injury in support of the claim as made by the petitioner in the writ petition. A large number of unpolled ballot papers of about 'eight' to 'ten' booths with stamp on 'Rising Sun' symbol or without stamp were produced in many of which there were signatures of some officer in the back portion, but many of them were also blank. We are narrating the aforesaid fact as all these documents were produced before the Court and on request were kept separately and shown to the learned Advocate General, the counsel for the State of Tamil Nadu as also the counsel for the State Election Commission. The case was initially adjourned to 16.10.06, but in the meantime, a large number of writ petitions (PIL) were preferred with regard to the said election held on 13.10.06 at Chennai. It includes writ petitions preferred by the political parties such as Bharathiya Janata Party (hereinafter referred to as BJP), Communist Party of India (Marxist) (hereinafter referred to as CPM), Marumalarchi Dravida Munnetra Kazhagam (hereinafter referred to as MDMK), Desiya Dravida Murpokku Kazhagam (hereinafter referred to as DMDK), Lok Paritan, etc. In all these petitions, similar allegations have been made and almost same relief has been sought for i.e., to declare the election to all the 155 wards of Ward Commissioners of Chennai Municipal Corporation held on 13.10.06 as illegal and void.

9. On 17.10.06 the State Election Commissioner appeared and informed that re-election has been ordered and held in 17 booths. On the suggestions the State Election Commissioner accepted to look into the allegations afresh to find out whether it requires repoll in any one or more polling booths or wards. On 18.10.06 counsel for the State Election Commission informed the Court that the State Election Commission, after going through the records, had decided to conduct repoll for further 27 booths of 12 wards, which would take place on 20.10.06. At the request of the State Election Commission, the Court allowed the said respondent to conduct repoll in 27 more booths of 12 wards and to start counting of votes in the rest 143 wards. It was also permitted to count the votes of the rest of the 12 wards after repoll is over on 20.10.06; but it was ordered on 18.10.06 that the counting of votes and the publication of results will be subject to the decision in these writ petitions. Pursuant to such permission, repoll was conducted in 27 more booths apart from the 17 booths where repoll took place earlier and thus repoll has been conducted by the State Election Commission in a total of 44 booths out of 3295 booths consisting of 155 wards of the Chennai Municipal Corporation. It is informed at Bar that against the interim order, the petitioner-AIADMK moved before the Supreme Court in SLP, but it was not entertained and only clarification was made that the counting of votes will start on 20.10.06 from 2.00 p.m. It is further informed at Bar that some persons have also moved before the Supreme court challenging the very same election with similar relief and the writ petitions under Article 32 of the Constitution of India is pending before the Supreme Court, but no date has been fixed for the hearing.

10. Almost all the political parties including the BJP, CPM, MDMK, DMDK and other petitioners have almost taken similar plea. According to them, there is no election at all on 13th October, 2006, as the electors were not allowed to vote and their electoral rights were not allowed to be freely exercised. On the other hand, a gang of persons snatched the ballot papers and put them in the ballot boxes. The polling booths having been closed at 9.00 a.m. and/or 11.00 a.m. and the voters having been told that the polling was over, what has actually happened on the polling day, namely, 13.10.06, cannot be called to be an election.

11. Mr.Jothi, learned counsel appearing on behalf of the petitioner-AIADMK, led the arguments. According to him, the election having not been conducted in the manner it should have been conducted, cannot be termed to be an election in the eye of law. The complaints made by candidates, criminal cases as instituted, the ballot papers as produced, were referred to suggest that there was complete chaos on 13.10.06; mass violence took place; almost all the booths were captured and ballot papers were looted and polled in favour of one political party i.e., the 5h respondent. The right to vote, according to him, was infringed and the basic principle of free and fair election, therefore, did not take place on 13.10.06. The statutory as well as constitutional right to vote and the right to expression such as to vote in favour of one or other candidate being fundamental, the incidents has affected the fundamental right of the public in general and, thereby, a public interest litigation is maintainable. It was also submitted that democracy being the basic structure of our Constitution, periodical free and fair election being the substratum of democracy, Court should interfere with the same, if the same is attacked by rowdy elements at the instance of the ruling political party.

12. Counsel for the State circulated a chart showing thirty complaints, which were forwarded by the State Election Commission to the police authorities for appropriate action. It has been shown under the heading "Law and Order - Petition Received on 13.10.06".

13. The State Election Commission in its affidavit has also accepted that its office received large number of complaints, out of which 30, which were urgent in nature were forwarded to the State Police for immediate action. It has been pleaded that the police and administration, on receipt of such complaints, immediately took action and restored normalcy and law and order near the booths and ensured free and fair voting by the voters.

14. Counsel for the petitioner referred to the chart wherein it was shown that thirty applications, urgent in nature, were referred to the State Police or other authority for immediate action and submitted that the State Election Commission abdicated its power. In fact, no action was taken by the State Election Commissioner and thus he failed to perform the duty, which he should have performed in accordance with law. Non-application of mind on the part of the State Election Commission was pleaded apart from failure to exercise power under the law. It was submitted that though the State Election Commission was competent to stop the process of election on receipt of such serious allegations and in view of the law and order position of the day, as evident from the chart produced by the State, without resorting to such provision, the State Election Commissioner merely forwarded the complaints to one or other officer of the State or Corporation.

15. According to the petitioners, to vote by using secret ballot with free mind and without any threat or pressure is the basic ingredient of free and fair election. To ensure such free and fair election, proper security arrangements should be made through independent agency, which will not take side of one or other candidate or political party. It was submitted that on 13.10.06 what happened was not a free and fair election. Large scale violence took place is evident from the ballot papers, which were scattered outside almost all the booths, the number of persons injured and hospitalised, reports published in the different newspapers with photographs of scattered ballot papers, ballot boxes, vandalism, photographs of injured persons and there was complete failure of police power. The Government machinery failed and, thereby, purity of election was not maintained allowing the rowdy elements to rig the poll by resorting to bogus voting in favour of the ruling political party. Apart from the above, large number of unpolled ballot papers with seal or without seal, number of seals, newspaper reports, photographs and complaints made by one or other person were produced before the Court to assess the gravity of the situation on the day.

16. Mr.P.S.Raman, learned Addl. Advocate General appearing on behalf of the State Police produced a chart showing the number of criminal cases lodged on 13.10.06 in connection with Chennai Municipal Corporation Election. Apart from the criminal offences under the different provisions/Sections as attracted, other details have been given, as shown hereunder : i) Total number of criminal cases : 94

ii) Total number of persons : 352 named + about 800

unknown persons

(Total 1152)

iii)Total number of persons : 76

arrested and released on bail

iv)Total number of persons : 86

arrested and sent for remand

v) Total number of persons : 47

obtained anticipatory bail

vi)Total number of persons : 143

yet to be arrested

17. Many of the FIR's have been lodged in the early morning, i.e., between 8.30 a.m. and 10.30 a.m. on 13.10.06 alleging booth capturing, violence, injury, ballot papers snatching, ballot boxes snatching, ballot papers missing and charges have been levelled under Sections 147, 148, 307, 323, 332, 341, 427 and 506 (II) IPC; Section 3 (1) (a) of TNPPD Act; Sections 135 and 136 (b) of Representation of People Act; Rules 66 (M), (L) of Madras City Municipal Corporation Act, 1990, etc.

18. Mr.Jothi, learned counsel for the AIADMK party referred to different provisions under which one or other FIR has been lodged and would submit that the gravity of the situation on the date of election could be assessed from the FIR's lodged and allegations made therein. It was complete chaos and large scale violence on the date of election and thus the basic concept of free and fair election was violated. The people were made to run for making complaint from one to other authority, but the State Election Commissioner did not even choose to meet the people or any of the complainant. Later on, he gave an interview in the Press media to inform that he was not well on the date of election as he was suffering from diarrhoea as reported in the newspapers published on 14.10.06.

19. A preliminary objection was raised on behalf of the respondents that the petition under Article 226 was not maintainable in respect of election dispute. In this connection, the common submission made on behalf of the petitioners is that the election process as contemplated under the Act and law, if duly not complied and if there is complete break down of law and order in the city forcing people to shy away from exercising their franchisee, if there is fear created amongst the public in general leading to total break down of democratic values, the High Court, under Article 226, could deal with the situation to ensure free and fair election. It was also submitted that a provision such as Article 243ZG of the Constitution of India, per se, does not bar judicial review of an election, which could be judicially reviewed under Article 226, but in the facts and circumstances of each case, it has to be looked into before interference in the matter relating to election.

20. According to the counsel for the petitioners, the writ petitions have been preferred for judicial redress for the benefit of the public in general, who suffered a legal wrong and legal injury. Their constitutional and legal rights have been violated. In the present case, the High Court did not choose to interfere with the election process on 13.10.06, but instead allowed the election process to continue culminating in declaration of results subject to the outcome of the writ petition. Thereafter, the election results having been declared, the matter having been heard by the Court in detail after looking into various evidence placed before it, as could have been placed before Election Tribunal, this Court could now interfere with the election dispute under Article 226 of the Constitution of India. It was suggested that the respondents -- State Authorities and the other respondents are opposing the petitions under Article 226 only with a view to buy time and delay the process of decision making in the election dispute; if the parties are asked to go before the Election Tribunal, the candidates, who have been declared elected only due to rigging and muscle power, will continue to hold office illegally at any cost of democracy till the time all election disputes are decided and it may take more than five years. Thus, to help the candidates, so-called elected, to hold their office during the major portion of their term, the respondents have taken plea of alternative remedy.

21. Learned counsel for the petitioners submitted that if the records are called for and looked into, it will be evident that they do not tally with the number of votes polled and the number of votes shown to have been casted. In most of the cases, the Court will find that the signature of the Presiding Officer or the Polling Officer is not available in the ballot papers and if the signature of the voters are compared, it will be evident that the genuine voters have not cast their vote.

22. The State Election Commission, while disputing the allegations had taken plea that free and fair election had taken place on 13.10.06. Mr.G.Masilamani, learned senior counsel appearing for the State Election Commission informed that approximately 55% votes has been cast by the voters. More than 50% of the voters having turned out to cast their votes in the total Chennai Municipal area, one could presume that free and fair election took place and so there was a good turn out of voters. The learned senior counsel, while requesting the Court to dismiss the writ petitions, submitted that there is a disputed question of fact relating to fairness of the election, which cannot be determined under Article 226 of the Constitution of India. However strong the allegation may be, such allegations cannot take place of fact; it cannot be presumed, but it has to be proved. The facts which has not been pleaded properly are required to be proved by the petitioners in accordance with law, unless it is shown that there is no need to prove the fact, there being no disputed questions of facts in a particular case. It is only in a case where no disputed fact is available the Court can decide the question of law under Article 226 of the Constitution of India. There being a forum available, such as Election Tribunal, the parties should raise election dispute before such Tribunal.

23. So far as abdication of power or inaction on the part of the State Election Commission as alleged by the petitioners is concerned, according to the counsel for the State Election Commission, in none of the complaint filed there is any specific affidavit but only allegations were made, which are based on facts and the Election Commission could not have gone through such facts for passing any order for withholdment of election process or to annul the elections. According to him, there is a limitation on the State Election Commission in the matter. There were influx of people from one area to other. The officers and employees were deputed to man the election in the best manner in all the Districts of the State of Tamil Nadu as Panchayat election and Municipal election in the total State were to be conducted in a free and fair manner in two phases, one on 13.10.06 and the other on 15.10.06. He referred to different rules to show the circumstances under which poll could be adjourned or cancelled and repoll could be ordered. For the purpose of exercising jurisdiction, the total contingencies as may arise has to be taken into consideration, apart from Rules and Act, by the State Election Commission. It is not only to ensure that the process of election is sacrosanct, but also the totality of election is conducted in a sacrosanct manner. The main duty of the election commission is to ensure comprehensive, quick, free and fair election. The election commission has to ensure that the process is not defeated and no such action should be taken, which may defeat and forestall the election. The duty of the election commission is to make every endeavour for completing defectless process and inspite of taking all steps, if any defect takes place, it could be seen later in the election dispute without compromising with or interfering with the process of election.

24. It was submitted that the human conduct and behaviour in natural manner could be presumed. The police perform its duty and maintain law and order is a natural presumption; non-performance is to be proved. 'Possibility' and 'Probability' are two different things. An uncertain thing, which may happen, is possibility, but probability is likelihood, appearance of reality or truth and reasonable ground of presumption. While he placed reliance on Section 8 of the Evidence Act and paragraphs 26 of the counter filed by the 5th respondent, it was submitted that on receipt of complaints, the State Election Commission took action. It was further submitted that the duty of the State Election Commission is to conduct and complete free and fair election and not to stop the election. Merely on the basis of certain complaints, it was not desirable to stop the total election, till bona fide of allegations is established or such allegation is reported and corroborated by any report of any officer or authority. The State Election Commission forwarded the complaints to the Commissioner of Police for action, which was bona fide and shows good intention. If it had been stopped, there could have been two opinions, two versions with regard to the allegations. Road-rokos made by different political parties were taken care of by the police immediately. According to him, no personal mala fide having been raised against the State Election Commissioner by one or other petitioner, at best one could hold it to be error of judgment, but action having been taken with best intention and ability, cannot be held to be perverse or biased. If there could be two opinions and no one could come to a definite conclusion, Court should not interfere with such matters.

25. Further, according to the learned senior counsel for the State Election Commission, where one or other decision had to be taken, it was taken and repoll has been conducted in 44 booths. Now after the election is over, the State Election Commission cannot decide the dispute, but it is for the Election Tribunal to decide if any such complaint is filed before it. Merely on the basis of certain complaints received on the date of election, in the absence of any report by the Polling Officer or Presiding Officer or Returning Officer or District Election Officer or by police, it was not possible to cancel the polling of all the booths. In such case, it would have amounted to taking action on the basis of complaint and such reaction and action would be arbitrary. It was further submitted that the case being subjudice before this Court since date of election i.e., 13.10.06, it was also not desirable for the State Election Commission to decide the same issue, which was under the scrutiny of the High Court. Power could be exercised only with great caution and it is only in the extreme situation action could have been taken. According to him, on the fateful day, i.e., 13.10.06, buses were running, transportation was continuing, there was no riotous situation, there was no curfew imposed in any of the area, no communal riot took place, there was no situation like tsunami or cyclone or earthquake, there was no complaint that the voters could not turn out to vote in favour of their choice candidate and thus there was no occasion to presume large scale violence and/or to cancel the election in the absence of any specific report. Large scale rigging is a mere complaint/allegation, which is yet to be proved. There being no proof or finding by any court of law or by any person, that large scale violence took place in one or other area on unproved allegation, no action could have been taken. Even the Court cannot come to a conclusion that large scale violence took place merely on the basis of such complaints/allegations. Whether voters were able to vote in favour of their choice candidate is a question of fact. This cannot be proved on the basis of the allegations made in the absence of corroborating evidence. No condition precedent could be pre-supposed and to prove the allegations what requires is proper pleading, without any ambiguity and specific with proof in its support. It was further submitted that even if the Court decides any election dispute under Article 226, it is required to follow the procedure as prescribed for trying an election petition.

26. Similar was the stand taken by the learned Addl. Advocate General appearing on behalf of the State and its officials. According to him, the police are not the constitutional authority to take any decision in the matter of process of election; they were there only to maintain law and order. As and when the matter came to the notice of the administration or any application was forwarded by the State Election Commission or FIR was lodged, the State authorities including the police took urgent and all steps for maintaining law and order in that particular area. Bandobust were made and after maintaining law and order, the process of free and fair election was allowed to continue. In some of the cases, due to disturbances, the election process was stopped for certain minutes or about an hour, but after making bandobust and maintaining proper law and order situation, free and fair election was conducted. According to the State, out of 3295 booths, 593 booths were identified as sensitive booths. Cluster booths i.e., more than one booth situated within one premises, were identified. Apart from the required number of head constable and constables, additional head constable and in some places additional Sub-Inspector of Police were deputed to ensure free and fair election. Electronic mobile vehicles were arranged and used during the election. On receiving complaint every effort was made and action taken immediately to preserve law and order and continue the election process. Out of the 94 complaints, in respect of 25 booths irregularities having been found, State Election Commission ordered for repoll.

27. Learned Addl. Advocate General for the State, while refuting the allegations, contended :

In view of Article 243ZG of Constitution of India, Section 54-A of Chennai City Municipal Corporation Act, 1919 and Rule 118 of Tamil Nadu Town Panchayats and Municipal and Corporation Councils (Elections) Rules, 2006, the invocation of remedy under Art.226 of Constitution of India is not maintainable.

When an efficacious judicial remedy is specifically and specially provided under Sec. 54-B of Chennai City Municipal Corporation Act, 1919 and Rule 118 of Tamil Nadu Town Panchayats and Municipal and Corporation Councils (Elections) Rules, 2006, the resort to Art.226 of constitution of India is not sustainable.

In view of Art. 243ZG, the process of election, till its culmination in the declaration of results ought not to be interfered with by Court and as soon as the results of the election is declared, all matters pertaining to disputes in the election, without any exception, shall fall within the purview of election petition, within the jurisdiction of designated court. Consequently, it is only the designated court in law, which can adjudicate all disputes pertaining to an election. No part or process of election can be carved out of the jurisdiction of the designated court for the judicial scrutiny and adjudication under Art.226 of Constitution of India, that too, resulting in setting aside of one or more elections, unseating the returned candidate or candidates by adopting a procedure different from the one prescribed for election petition, when the relevant provisions of the Constitution and the laws relating to the election specifically and by implication exclude the scrutiny under Art.226 of the Constitution of India. Any exercise of jurisdiction by the High Court under Art.226 of Constitution of India relating to one or more election after the declaration of result or results before or after filing election petition or petitions shall amount to the Hon'ble Court exercising a jurisdiction divested from it and in non-conformity with the relevant provisions of the Constitution and the applicable law relating to elections. The various allegations mentioned in the various complaints sent/given to the Election Commission on 13.10.2006 by various political parties, candidates in the election and others and the several allegations mentioned in the affidavits filed in support of the writ petitions pertain and relate to innumerable number of disputed questions of fact and these disputed questions of fact cannot be tried and decided in the writ petition and, hence, writ petitions are liable to be dismissed. The remedy provided by way of election petition as envisaged in Art.243ZG of Constitution of India and under Sec.54-B of Chennai City Municipal Corporation Act, 1919, and Rule 118 of Tamil Nadu Town Panchayats and Municipal and Corporation Councils (Elections) Rules, 2006, with elaborate procedure cannot be by-passed, ignored and the rigour of the procedure established by law for challenging an election cannot be eased by resorting to Art.226 of Constitution of India by simply filing an affidavit containing "to be proved" vague, general sweeping allegations and a typed set containing xerox copies of some allegedly supporting unproved documents and its contents. The polling held in respect of 3295 polling booths relating to 155 Wards in Chennai City Municipal Corporation cannot be called in question in writ petitions compendiously and declared invalid on the basis of to be proved allegations of innumerable number of disputed questions of fact, that too, pertaining to specific polling booths and on the basis of general and sweeping allegations against all the polling booths in all the Wards. In the regime of elections, Public Interest Litigation is a total alien. The law Sec.54-A (2) of the Chennai City Municipal Corporation Act, 1919, specifically enjoins election can be challenged only by any candidate at such election, by any elector of the division concerned or by any councillor. Hence, the Public Interest Litigation filed by the writ petitioners are not at all maintainable. Election being a creature of statute, no matter pertaining to an election can be dealt with in a manner otherwise than provided in the laws relating to the said election. The intervention in the election, either during or after the election by individuals, political parties, association of persons and others by way of Public Interest Litigation shall not be maintainable in the absence of any law authorising/enabling such an intervention. Principles of natural justice to be followed when challenge to election is made. Persons who would be affected if election is set aside, in one form or other, should be heard; since the returned candidates are not made as parties, these writ petitions are liable to be dismissed.

In cases of individual or plurality of elections dehors the fact, whether the election was held separately or simultaneously on grounds of one or more irregularities specified in the law, the individual election to a constituency has to be challenged only by way of an election petition.

Notwithstanding the fact the election to all or several constituencies are called in question on one or more common grounds, even then such election/elections have to be challenged individually in one or more election petitions as the case may be. Plurality of challenge to elections on common grounds shall not be a ground to by-pass the election petition and to resort to remedy under Art.226 of Constitution of India. There can be no election without contesting candidates/returned candidates and, hence, the election cannot be challenged separately without the contesting candidates/returned candidates.

In the pursuit of purity and flawless election, elections ought not to be set aside or postponed, since, however, imperfect the election may be, some election may be better than no election. Semblance of election/democracy is better than an unaccountable authorisation. Therefore, the Court should be expressly reluctant to interfere with elections, that too, otherwise than by way of an election petition. The State Election Commissioner has performed his duties within the parameters of law applicable and had ordered re-poll in as many as 44 polling booths on the basis of the reports received by him from the Returning Officer. Further, he had transmitted the complaints received during the time of poll promptly to appropriate high level authorities for taking immediate action to ensure free and fair poll. Hence, the Election Commissioner has discharged his duties promptly, fairly and proportionate to the demand of the situation. In these circumstances, merely on the basis of unproved allegations and complaints, the conclusion cannot be reached that the State Election Commissioner has abdicated his duties and as a consequence of the same the entire election of 155 Wards including the 44 booths in which re-poll had taken place and in respect of which re-poll there are no complaints is invalid. For these reasons also, the writ petitions are liable to be dismissed.

28. Mr.Natarajan, learned senior counsel appearing on behalf of the 5th respondent-DMK, while denying the allegations, submitted that the bare allegations cannot take place of proof. It should not be accepted by the court. The probability must be based on some evidence. He raised doubt as to how unpolled ballot papers were obtained by the petitioners to produce before the Court. It was submitted that the political parties and other candidates like the petitioners, who could not perform well, they made sporadic violence in most of the places and looted some ballot papers and ballot boxes; facts cannot be looked into on the basis of the allegations made by one or other and decision could be arrived at only on the basis of evidence, if any, on record.

29. The following questions prominently emanate, from the above submissions made by the parties, for consideration before this Court, viz.,

i) Whether the State Election Commission failed to exercise its power during the Chennai Municipal Corporation Election held on 13.10.06 ?

ii) Whether there was a free and fair election held on 13.10.06 in all the 155 wards of the Chennai Municipal Corporation ?

iii) Whether there is a blanket ban on Court for interference during the process of election ? and

iv) Whether an election dispute can be raised and decided by High Court under Article 226 of the Constitution of India ?

30. Before determining the issues, it is necessary to look into the concept of democracy and free and fair election.

31. In the case of Indira Nehru Gandhi - Vs - Raj Narain reported in AIR 1975 SC 2299 :: 1975 Supp. SCC 1, Justice Mathew explained :

"The concept of democracy as realised by Constitution pre-supposes representation of the people in Parliament and State Legislatures by the method of election and before an election machinery could be brought into operation, there are three requisites, which required to be attended to, namely, (i) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, election, and it should be decided as to how those laws and rules are to be made; (ii) there should be an executive charged with the duty of securing the due conduct of elections; and (iii) there should be a judicial tribunal to deal with the disputes arising out of or in connection with election."

32. In Mohinder Singh Gill & Anr. - Vs - Chief Election Commissioner , New Delhi & Others reported in 1978 (1) SCC 405 :: AIR 1978 SC 851, the philosophy of election in a democracy was highlighted in paragraph-23 of the judgment, as quoted hereunder :

"23. Democracy is government by the people. It is continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. The right of election is the very essence of the constitution' (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair election periodically held, based on adult franchise, although social and economic democracy may demand much more."

33. Similar view was taken by the Supreme Court in Kihoto Hollohan - Vs - Zachillhu reported in 1992 Supp. (2) SCC 651, wherein the Court held:

"179. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority."

34. In Gujarat Assembly Election matter reported in 2002 (8) SCC 237, the Supreme Court noticed the debate of constituent assembly while enacting Article 324. Having noticed the statement of Dr.B.R.Ambdekar before the constituent assembly, the Supreme Court observed that by enacting Article 324, the superintendence, direction, control and conduct of election was no more left in the hands of executive but was entrusted to an autonomous constitutional authority (i.e.) the Election Commission. The Supreme Court further held that democracy is a basic structure of the Constitution and periodical, free and fair election is the substratum of democracy. If there is no free and fair periodical election, it is end of democracy.

35. In the aforesaid Gujarat Assembly Election Matter (supra), the Supreme Court also held as follows:

"Free and fair election is the sine qua non of democracy. The scheme of the Constitution makes it clear that two distinct Constitutional Authorities deal with election and calling of session. It has been pointed out to us that as a matter of practice the elections are completed within a period of six months from the date of dissolution, on completing the prescribed tenure or on premature dissolution except when for inevitable reasons there is a delay. The Election Commissioner is a high Constitutional Authority charged with the duty of ensuring free and fair elections and the purity of electoral process. To effectuate the constitutional objective and purpose it is to draw upon all incidental and ancillary powers."

36. In Mohinder Singh Gill & Anr. - Vs - Chief Election Commissioner , New Delhi & Others reported in 1978 (1) SCC 405 :: AIR 1978 SC 851, the following observation was made by the Apex Court:

"12. A free and fair election based on universal adult franchise is the basis, the regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free elections, are the specifics. .... The super authority is the Election Commission, the kingpin is the Returning Officer, the minions are the presiding officers in the polling stations and the electoral engineering is in conformity with the elaborate legislative provisions."

37. So far as citizens' right to elect a person of his/her choice is concerned, such issue fell for consideration before the Supreme Court in the case of N.P.Ponnuswami - Vs - Returning Officer, Namakkal Constituency, Namakkal, Salem District & Others reported in AIR 1952 SC 64. In the said case the Supreme Court held that 'right to vote' is not a fundamental right, but a statutory right. Such decision was followed in the case of Jyoti Basu - Vs - Debi Ghosal reported in 1982 (1) SCC 691 :: AIR 1982 SC 983, wherein the Supreme Court held: "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."

38. Subsequently, when the question of right to vote fell for consideration in the case of People's Union for Civil Liberties (PUCL) & Anr. - Vs - Union of India & Anr. reported in 2003 (4) SCC 399, having noticed the judgment rendered in the case of N.P.Ponnuswami & Jyoti Basu (supra), the Supreme Court held: "The right to vote at the elections of the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19 (1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter."

39. From the aforesaid finding it is clear that the voters have a right and freedom to choose a candidate as per their choice.

40. In the present cases, allegations have been made that the State Election Commission failed to exercise its residuary and plenary power, and in fact it abdicated its power in favour of State Police on 13.10.06 while Chennai Municipal Corporation election was in process. For determination of such question it is necessary to notice Article 243ZA of the Constitution.

41. Clause (1) of Article 243ZA is similar to Clause (1) of Article 324 of the Constitution. In the case of Mohinder Singh Gill & Anr. - Vs - Chief Election Commissioner , New Delhi & Others reported in 1978 (1) SCC 405 :: AIR 1978 SC 851, the Supreme Court having noticed the provision of Article 324, held: "39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid, Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. Myriad may be too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election."

42. The aforesaid judgment was also followed in the case of Union of India - Vs - Association for Democratic Reforms & Anr. reported in 2002 (5) SCC 294, wherein it was noticed that the framers of the Constitution took care of leaving the scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time.

43. In the case of T.N.Seshan, Chief Election Commissioner of India - Vs Union of India & Others reported in 1995 (4) SCC 611, the Supreme Court observed :-

"...... The function of the Election Commission are essentially administrative, but there are certain adjudicative and legislative functions as well. The Election Commission has to lay down certain policies, decide on certain administrative matters of importance as distinguished from routine matters of administration as also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides the administrative functions, it may be called upon to perform quasi-judicial duties and undertake subordinate legislation - making function as well ......"

44. There could be no doubt that the State Election Commission discharges public function. In the present case, under the scheme of Article 243ZA, the Commission has to lay down policies, decide on certain administrative matters of importance apart from the routine matters of administration. Besides administrative function, it may be called upon to perform quasi-judicial duties, such duties cannot be equated with the duties to be performed by a judicative tribunal for determination of election dispute. At the time of process of election or when the election is being conducted, it has got power to adjudicate disputes including the question whether free and fair election was conducted in one or other booth/ward. Such determination has to be made in accordance with law, but cannot be done in an arbitrary manner. If the Rule or Act expressly provides the manner in which such action to be taken, the State Election Commission cannot function arbitrarily contrary to the provisions of law. The power has to be exercised with great caution taking into consideration the situation, including the extra-ordinary situation, if any.

45. Chapter III of the Chennai City Municipal Corporation Act, 1919 relates to election and appointment of councillors. Qualification and disqualification of voters, candidates and councillors have been shown therein. Section 45 stipulates 155 divisions (wards) for the purpose of election of the councillors and mode of election is prescribed under Section 46-A. While Section 47 deals with electoral rolls for divisions (wards/seats) and qualification for inclusion therein, Section 48 relates to publication of electoral rolls, etc. Section 48-B provides the penal action, if false declaration is made; Section 50 stipulates disqualification of voters. Qualification of candidates has been prescribed under Section 51. Under proviso to sub-section (2) of Section 51, the Governor is empowered, both before or after election, to determine whether any person is or is not qualified under the said sub-section, who has to take a decision on such question after obtaining the opinion of the State Election Commission. For tendering such opinion to the Governor, powers of State Election Commission has been shown under Section 51-A. Section 51-B deals with statement made by the persons to the State Election Commission; Section 51-C relates to procedure to be followed by the State Election Commission. Section 52 provides disqualification of the candidate and Section 52-A and Section 53 relates to disqualification for Mayor, Deputy Mayor and Councillors respectively.

46. A separate Election Rule has been framed for Town Panchayats and Municipalities and Corporations known as Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Election) Rules, 2006 (hereinafter referred to as Rules, 2006). Therein provisions have been made for appointment of polling personnel; appointment of polling agents; function of election agents; arrangement at polling stations; preparation of ballot boxes for poll, etc. Under Rule 43, while provision has been made to challenge the identity of any personnel by polling agent, Rule 44 relates to identification of electors. Rule 45 deals with safeguarding against impersonation and Rule 48 deals with manner of voting. In case of interruption or obstruction by any riot or open violence, a provision has been made in Rule 54 to stop polling. Rule 55 relates to fresh poll in the case of obstruction, etc., of ballot boxes. The rules 54 and 55 being relevant for this case, such rules are quoted hereunder: "54. Adjournment of poll in emergencies. -

(1) If at a poll, the proceedings at any polling station are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station on account of any natural calamity or any other sufficient cause, the Presiding Officer for such polling station shall stop the poll, inform through the Returning Officer to the State Election Commission, State Election officer and the District Election Officer. The fact that the poll has been so stopped shall be immediately announced by the Presiding Officer to the persons present at the polling station. (2) Where a Presiding Officer stops the poll under sub-rule (1), he shall observe the procedure laid down in rule 56 and make a full report of the circumstances to the Returning Officer who shall report the matter to the State Election Commission, State Election Officer and the District Election Officer.

(3) The District Election Officer shall thereupon order --

(a) that the poll adjourned and held at such polling station for the number of hours for which it was not held on the previous occasion ; or

(b) that the poll be adjourned and held at such polling station for the full number of hours. An order passed by the District Election Officer under this sub-rule shall be final ;

(c) when an order under clause (a) or (b) of sub-rule (3) is passed, the Returning Officer shall not count the votes cast at such election until such adjourned poll shall have been completed.

(4) (a) An order passed under clauses (a) or (b) of sub-rule (3) shall state --

(i) the date on which and the hours between which [such adjourned poll] shall be held ; and

(ii) the date on which and the place and hour at which the Returning Officer shall commence the counting of the votes.

(b) On receipt of orders passed under sub-rules (3) and (4) (a), the Returning Officer shall inform the contesting candidates or their election agents, of the date, time and place fixed for such adjourned poll and affix a notice on the notice board of the Town Panchayat or Third Grade Municipality or Municipality or Corporation and in one or two conspicuous placed in the ward notifying the date and hours so fixed. 5 (a) Where an order is passed under these rules for the adjournment of the poll for the number of hours for which it was not held on previous occasion, the Returning Officer shall proceed further as stipulated under sub-rule (1) of rule 35 and return to the Presiding Officer appointed under that said sub-rule, all the packets received by him under sub-rule (2).. (b) The Presiding Officer shall open the packets just before the commencement of the such adjourned poll in the presence of such persons who may be present at the polling station and commence such adjourned poll precisely at the hour fixed therefore.

(c) At the such adjourned poll, the Presiding Officer shall allow only such electors to vote who have not cast their vote on the previous occasion.

(6) Where an order is passed under clause (b) of sub-rule (3) for the adjournment of poll for the full number of hours, the Returning Officer shall proceed afresh, under sub-rule (1) of rule 35 and such adjourned poll shall be held at the polling station concerned in accordance with the provisions of these rules in all respects, as if it were being held at such polling station for the first time : Provided that there shall be no fresh nomination in the cases falling under this sub-rule :

(7) Notwithstanding anything contained in this rule, if a contesting candidate sponsored by a recognised political party in the election of a Chairman or the Mayor or Councillor dies at any time before orders are passed by the District Election Officer, under sub-rule (3) or at any time after the passing of such orders, but before the commencement of such adjourned poll, the Returning Officer shall, upon being satisfied of the fact of the death of the contesting candidate, stop all further proceedings in connection with the election and inform the State Election Commission, the State Election Officer and the District Election Officer. The State Election Commission shall thereupon start election proceedings afresh in all respects as if it were a new election : Provided that for the election proceedings so started no fresh nomination shall be necessary in the case of the remaining contesting candidates.

55. Fresh poll in the case of destruction, etc. of ballot boxes.- (1) If at any election --

(a) any ballot box used at a polling station or at a place appointed for counting of votes is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed, or lost, or is damaged, or tampered with to such an extent that the result of the poll at that polling station cannot be ascertained; or (b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station, the Returning Officer shall forthwith report the matter to the State Election Commission, the State Election Officer and the District Election Officer.

(2) Thereupon, the State Election Commission or the State Election Officer shall, after taking all material circumstances into account either --

(a) declare the poll at the polling station to be void, appoint a day and fix the hours for taking a fresh poll at that polling station and direct that the day so appointed and the hours so fixed be published in the manner laid down in clause (b) of sub-rule (4) of rule 54, besides intimating the contesting candidates or their election agents ; or (b) if satisfied that the result of a fresh poll at the polling station will not in any way affect the result of the election or that the error or irregularity in procedure is not material, issue such directions to the Returning Officer as he may deem proper for the further conduct and completion of the election.

(3) The provisions of these rules or orders made thereunder shall apply to every such poll as they apply to the original poll."

47. From the aforesaid provision, it is evident that the State Election Commission cannot interrupt or stop the poll without any basis merely on the allegation of one or other candidate or voter. It is only when such report is submitted by a Polling Officer or Presiding Officer or Returning Officer or District Election Officer, the State Election Commission could act on the basis of the same.

48. Admittedly, election to different panchayats and municipalities took place in different districts on 13.10.06 including election to the Chennai Municipal Corporation. It is not expected that the State Election Commissioner should remain present in all the Districts at the time of election on the same day, though he may be present in one or other place. In this case, it is informed that the State Election Commissioner was available in Chennai town, but was indisposed due to his health. On behalf of the State Election Commission, it is informed that wherever there was a complaint, the matter was referred to the Commissioner of Police or the Head/Chief of Police for taking necessary action. It appears that on receipt of report, the State Election Commission decided to conduct repoll in 17 booths of certain wards on the date of election. Though certain materials were placed before the Court to suggest large scale looting of ballot papers, violence, etc., but it was not possible for the Court to determine on the same day as to whether violence took place in all the places obstructing the poll in some of the booths or in all the booths and thereby the poll of all the wards or in some of the wards were obstructed. In absence of specific report even this Court did not grant any stay on the said date, but allowed the process of election to continue. We are discussing the aforesaid aspect to find out whether in absence of specific report as required to be submitted by the officers under the Rules it was possible for the State Election Commission to stop the polls of all the booths/wards of the Chennai Municipal Corporation. According to us, the State Election Commission cannot stop the polls of all the booths and wards on the day of polling merely on the basis of different complaints received by it, without ascertaining the position from the District Administration, without assessing the gravity of the situation in the city and without taking into consideration the report of Polling Officers; Presiding Officers; Returning Officer and District Election Officer, which they are supposed to submit immediately on conclusion of the poll.

49. The respondents have taken specific plea regarding maintainability of the writ petitions in view of bar to challenge election dispute before any court of law except by filing such petition before an Election Tribunal having regard to Article 243ZG of the Constitution, which reads as follows:

"243ZG : Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution, -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZF shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

Similar is the provision made under Article 329 (b) of the Constitution, wherein similar bar has been imposed.

50. The meaning of the word "no election shall be called in question" fell for consideration before the Supreme Court in the case of N.P.Ponnuswami - Vs - Returning Officer, Namakkal Constituency, Namakkal, Salem Dist & Others reported in AIR 1952 SC 64. Therein, the Supreme Court held as follows:

"9) The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. .................... Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it. x x x x x x x x

13) It is argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Art. 226 of the Constitution. This argument, however, is completely shut out by reading the Act along with Art. 329 (b). It will be noticed that the language used in that article and in S.80 of the Act is almost identical, with this difference only that the article is preceded by the words "notwithstanding anything in this Constitution." I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress." (Emphasis Added).

In the said case, the Supreme Court, while drawing the conclusion, summed up the conclusion as follows:

"16) The conclusions which I have arrived at may be summed up briefly as follows:

(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election," and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."

51. The same issue again fell for consideration before the Supreme Court in Mohinder Singh Gill & Anr. - Vs - Chief Election Commissioner, New Delhi & Others reported in 1978 (1) SCC 405 :: AIR 1978 SC 851. Having noticed its earlier decision in Ponnuswami's case (supra), the Supreme Court held:

"29) Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami (AIR 1952 SC 64) is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is 'part of election' and challenging it is 'calling it in question'. 30) The plenary bar of Art. 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. Durga Shanker Mehta (1955 (1) SCR 267 : (AIR 1954 SC 520)) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court's over all power to interfere under Art. 136 springs into action. In Hari Vishnu (1955-1 SCR 1104) : (AIR 1955 SC 233) the Court upheld the rule in Ponnuswami (AIR 1952 SC 64) excluding any proceeding, including one under Art. 226, during the on-going process of election, understood in the comprehensive sense of notification down to declaration. Beyond declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329 (b) does not bind."

52. Again the issue fell for consideration before the Supreme Court in Election Commission of India through Secretary - Vs - Ashok Kumar & Others reported in AIR 2000 SC 2977. It was considered whether there is any conflict between the jurisdiction conferred on the High Courts under Article 226 of the Constitution and the embargoes created by Article 329 and if so how would they co-exist. Having noticed the Supreme Court decisions in the case of Ponnuswami (supra) and Mohinder Singh Gill (supra), the Supreme Court summed up its conclusion and by adding clarification to the earlier two judgments, held as hereunder :- "32) For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

1) If an election, (the term 'election' being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for the invoking the jurisdiction of the Court. 5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." (Emphasis Added)."

53. Similar was the view of the Supreme Court in Inderjit Barua - Vs - Election Commission of India reported in AIR 1984 SC 1912, wherein the Supreme Court observed that merely because elections are challenged as a whole and not individually by filing a writ petition on the ground that elections were held on the basis of unrevised electoral rolls and, therefore, invalid, the bar under Article 329 (b) does not cease to operate; Article 329 (b) clearly bars any writ petition challenging the elections on the ground that the electoral rolls were incorrect.

54. The bar as imposed under Article 243ZG in the matter of municipal election fell for consideration before the Supreme Court in Anugrah Narain Singh - Vs - State of U.P. reported in 1996 (6) SCC 303. Having noticed the jurisdiction of High Court under Article 226, the Supreme Court held that in terms of Article 243ZG of the Constitution, there is complete and absolute bar in considering any matter relating to municipal election on any ground whatsoever after the publication of the notification for holding municipal election. No election to municipality could be questioned except by an election petition and if the election is imminent or well under way, the Court should not intervene to stop the election process.

55. In the case of Jaspal Singh Arora - Vs - State of M.P. & Ors. reported in 1998 (9) SCC 594, the Supreme Court held that in view of the statutory mode provided by the M.P. Municipalities Act, election of President of Municipal Council could not be challenged by a writ petition and such a writ petition is barred by Article 243ZG. The relevant portion of the judgment is quoted hereunder :- "3. These must be allowed on a short ground. In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier writ petition for the same purpose by a defeated candidate had been dismissed by the High Court."

56. Similar issue again fell for consideration before the Supreme Court in Manda Jaganath - Vs - K.S.Rathnam reported in AIR 2004 SC 3600; ban imposed under Article 329 (b) of the Constitution of India having been noticed, the Court held that there being a specific provision against the challenge of election except by an election petition presented to such authority, in such a manner as may be provided for in a law made by appropriate legislature, the High Court should not interfere with the matter in exercise of writ jurisdiction. The Apex Court further held that there are special situations where writ jurisdiction could be exercised, but such situation means error having the effect of interfering in the free flow of scheduled election or hindered in the progress of the election, which is the paramount consideration. If by an erroneous order, conduct of the elections is not hindered, then courts, under Article 226 of the Constitution, should not interfere with the order of the Returning Officers, the remedy for which lies in an election petition only.

57. Even in the matter of Bar Council Election in the case of K.K.Srivastav - Vs - B.K.Jain reported in AIR 1977 SC 1703, the Supreme Court held that where there is a proper or equally efficacious remedy, the court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so, where there is a statutory prescribed remedy, which reads into mandatory terms.

58. Similar view was taken by the Supreme Court in respect of election of members of the Sikh Gurudwara Management Committee reported in JT 2006 (9) SC 111 - Avatar Singh Hit - Vs - Delhi Sikh Gurudwara Management Committee & Others. The Supreme Court held that no exceptional and extraordinary circumstance having been disclosed for taking recourse to the constitutional remedy under Article 226, the writ petition should not have been entertained for resolving factual disputes and the petitioner should have filed only an election petition. Further, having noticed non-impleadment of the newly elected members, the Supreme Court held that non-impleadment of newly elected members was fatal and no relief could have been granted to the writ petitioner.

59. Learned counsel for the petitioners referred to different decisions of one or other High Courts and the Supreme Court in support of their claim that court can also interfere with the election dispute under Article 226 of the Constitution of India as discussed hereunder.

60. In the case of A.Swamickan - Vs - K.Venkatachalam reported in AIR 1987 Madras 60, a Bench of this Court noticed the provision of Article 193 (3) of the Constitution of India that unless a person is an elector for any assembly constituency, he cannot stand for an election to fill a seat in the legislative assembly of a State. In the said case, while the Court held that the respondent has no basic qualification, in exercise of jurisdiction under Article 226, gave a Declaration that the first respondent in the said case was not qualified. The matter, thereafter, was taken to Supreme Court in K.Venkatachalam - Vs - A.Swamickan reported in AIR 1999 SC 1723. The Supreme Court held that Article 329 (b) which bar interference of the Court in electoral matters does not come into play when the case falls under Articles 191 and 193, which provides for disqualification of membership and penalty for sitting and voting when disqualified, and High Court could exercise jurisdiction under Article 226 and declare that the election was illegal inasmuch as the elector did not possess the basic constitutional and statutory qualification.

61. One 'Surinder Kaur' preferred a writ petition under Article 226 before the Punjab and Haryana High Court reported in AIR 1994 P & H 185, where she claimed that she was the Sarpanch for fifteen years of the Gram Panchayat, Village Dayalgarh, District Gurdaspur. She had obtained all the no objection certificates and other certificates on 15.1.93. On 17.1.93 she went at 12.00 noon to submit her nomination papers, but her husband was wrongfully detained by police and the 7th respondent in the case, and one Tara Singh had forcibly snatched the nomination papers and torn them off. Inspite of her complaint to the police, they did not pay any heed to her protest nor acted on her complaint. So, she complained at about 4.30 p.m. to the Sub-Divisional Magistrate present in the gypsy vehicle. There was an entry in the log book, but no action having been taken, since election was to take place on 18.1.93, she approached the High Court and filed a writ petition. The High Court granted stay at 2.00 p.m., which was communicated telegraphically at 3.00 p.m. on the same day, but the poll was concluded and closed at 4.00 p.m. inspite of stay order passed by the Court. Later on, the High Court dismissed the writ petition. Thereafter, the matter was taken up to Supreme Court in Surinder Kaur - Vs - State of Punjab reported in AIR 1996 SC 1507. The Supreme Court having noticed that there was a stay granted by the High Court at 2.00 p.m. and the respondent had knowledge of the same, held that the Returning Officer should have stayed his hand back and awaited the decision of the High Court. It was observed that though the petitioner could have filed an election petition, but in view of the fact that inspite of stay order passed by High Court election was conducted and that being a case of unlawful prevention of appellant from contesting the election, the election of the 7th respondent as Sarpanch was set aside with a direction to hold repoll. That was a case wherein court's interim order having been flouted, the Supreme Court exercised its power and allowed the appeal.

62. In another case of Jayarajbhai Jayantibhai Patel - Vs - Anilbhai Jayantibhai Patel & Ors. reported in 2006 AIR SCW 4670, the Supreme Court discussed the scope of judicial review under Article 226 in the matter of election of President of a municipality. Having noticed that two councillors of the municipality were detained by police few minutes before the election meeting, and inspite of the fact being brought to the notice of the Presiding Officer, the Presiding Officer decided to continue with the election, the Supreme Court held that in facts and circumstances, the decision of the Presiding Officer was perverse and irrational warranting interference under Article 226.

63. In the case of B.R.Kapur - Vs - State of T.N. reported in AIR 2001 SC 3435, the Supreme Court having noticed the appointment of a non-legislator as Chief Minister for a period of six consecutive months under Article 164 (4); there is prescribed qualification for membership of a legislator under Article 173 and disqualification contained under Article 191, held that a person convicted for criminal offence and sentenced to imprisonment for a period of not less than two years is disqualified under Section 8 (3) of the Representation of People Act and thereby held that such a person cannot be sworn in and cannot continue to function as the Chief Minister. Therein, the constitutional provisions and bar to interference by Courts under Article 329 was noticed and discussed and the Supreme Court held that the authority to appoint could be challenged in quo warranto proceeding and could be quashed by the court.

64. From the aforesaid fact, it would be evident that where the election is to be called in question and which may have the effect of interrupting, obstructing of protracting the election proceeding in any manner, as per the Supreme Court decision, invoking of judicial remedy has to be postponed till after the completion of the election. On the other hand, if any decision sought and rendered will not amount to calling in question an election and if it subserves the progress of the election and facilitates completion of the election, anything done towards completing or in furtherance of election proceeding is permissible as it cannot be described as questioning the election. Action taken or order issued by the Election Commission are open to judicial review such as on a case of mala fide or arbitrary exercise of power being made out or statutory body being shown to have acted in breach of law. The Supreme Court further observed that the Court must be very circumspect and act with caution while entertaining any dispute if not hit by the bar under Article 329 (b), but brought to it during the pendency of the election proceeding.

65. In the present case, these writ petitions under Article 226 were filed by the petitioners with prayer to declare the elections of all the 155 wards of Chennai Municipal Corporation or part thereof as void and invalid with further prayer to direct the State Election Commission not to count the votes nor to declare the results and to hold a fresh poll in all the booths. As the challenge aforesaid had the effect of interrupting, obstructing and protracting the election process, this Court postponed the judicial remedy till after the completion of the proceedings in elections. Now the question arise whether the Court should exercise its jurisdiction under Article 226 to declare all the election held for 155 wards of Chennai Municipal Corporation as void and illegal for the ground shown by the petitioners. For coming to such a conclusion it is not only required to be seen whether the allegation made in the writ petitions are correct, whether there is mala fide or arbitrary exercise of power by the statutory body or have acted in breach of law, it is also required to be seen whether any such declaration can be given under writ jurisdiction in absence of elected candidates or the candidates who may be affected.

66. Another question that may arise if the election dispute is decided in a case under Article 226 is whether such decision will amount to divesting the jurisdiction of the election tribunal? In such case, what remain to be determined by Election Tribunal if any election dispute has been raised by one or other candidate or person before such tribunal. Such decision is to be taken taking into consideration the objection raised by the respondents that the allegations made in the petitions are vague, not specific and pleading is not accurate nor specific and no proof has been submitted in support of such pleading.

67. Part X of Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Election) Rules, 2006 (hereinafter referred to as Rules, 2006) provides for "adjudication of election dispute". Rule 118 relates to election petition, which could be preferred before the Principal Judge, City Civil Court, Chennai or the District Judge, as quoted hereunder: "118. Election Petitions - Save as otherwise provided, no election held under the Act, shall be called in question except by an election petition presented in accordance with the relevant Section of the Act and these rules, to the Principal Judge, City Civil Court, Chennai or the District Judge of the District concerned, as the case may be (hereinafter referred to as the election court) under whose jurisdiction the Panchayat Town or the Transitional Area or Municipality or Corporation is situated, by any candidate or elector against the candidate who has been declared to have been duly elected."

68. Rule 119 prescribes the time limit for presenting election petition whereas Rule 120 relates to grounds for presenting such an election petition. As per Rule 121, an election petition shall contain a statement in a concise form of the material facts on which the petitioner relies. It shall set forth full particulars of any corrupt practice as specified under the Act, which he alleges, and shall, wherever necessary, be divided into paragraphs and numbered consecutively. The petition as well as its annexures or appendices if any, to be signed by the petitioner or by his counsel and verified in the manner as laid down in the Code of Civil Procedure, 1908 for verification of pleading. Rule 122 mandates joining as respondents all the returned candidates and any other candidate against whom allegations of any corrupt practice are made in the petition. Rule 123 enable the petitioner to claim that the election of all or any of the returned candidate is void apart from the claim for further declaration that he must or any other candidate has been duly elected. Rule 124 stipulates security deposit of Rs.2500/= in cash. Under Rule 125, it is mandatory to serve the copy of such petition on the respondents and the Commissioner of the Corporation concerned apart from the State Election Commission. Under Rule 126 the election court may enquire into in accordance with the Code of Civil Procedure for trial of election petition and to make a memorandum of the substance of the evidence of any witness examined by it.

69. The Supreme Court in the case of A.R.Antulay - Vs - Ramdas Srinivas Nayak reported in AIR 1984 SC 718, held that where a statue requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

70. In the case of LIC of India - Vs - Asha Ramachandra Ambekar reported in AIR 1994 SC 2148 the Supreme Court observed -- "It should be remembered 'law is the embodiment of wisdom'. Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be."

71. In another case of S.N.Balakrishna - Vs - Fernandez reported in AIR 1969 SC 1201, having noticed Section 83 of the Representation of the People Act, 1951, whereunder it is required that the election petition should contain first a concise statement of material facts and then requires fullest possible particulars to present a full picture as to the cause of action with such further information in detail as to make the opposite party understand the case, held that such Section 83 is mandatory. The Court further held that the nature and complete cause of action must be stated in the petition in the shape of material facts.

72. While dealing with an election petition relating to inclusion of names in electoral rolls and objection relating to inclusion of certain names, in the case of Lakshmi Charan Singh - Vs - A.K.M. Hassan Auzzaman reported in AIR 1985 SC 1233, the Supreme Court having noticed the interim order passed by the High Court, held that the High Court had no material before it to warrant the passing of such orders, and observed that the allegations in the writ petitions are of vague and general nature, on the basis of which no relief could be granted.

73. Article 243ZG of the Constitution provides that notwithstanding anything contained in the Constitution no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as provided by or under any law made by the Legislature of a State. (Emphasis Added). In N.P.Ponnuswami (supra), Supreme Court held that as per the scheme of Part-XV of the Constitution and the Act any matter which has the effect of vitiating an election should be brought up only at appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at any immediate stage before any court. (Emphasis Added). Any other meaning ascribed to the words used in the Article would lead to anomalies. Aforesaid decision was followed by Supreme Court in subsequent cases including "Election Commission of India - Vs - Shivaji" reported in AIR 1988 SC 61. In view of the decisions aforesaid, we are of the opinion that the mandatory provisions as laid down in Part-X of Rule, 2006, is bound to be followed and such election petition shall lie before the appropriate court as prescribed under Rule 118 and quoted above.

74. The question of joinder of parties to an election petition fell for consideration before the Supreme Court in the case of Jyoti Basu - Vs - Devi Ghosal reported in AIR 1982 SC 983 :: 1982 (1) SCC 691. In the said case, the Supreme Court held that no one may be joined as a party to an election petition otherwise than is provided by Sections 82 and 86 (4) of the Act. The person, who is not a candidate may not be joined as a respondent to the election petition

75. In the case of BCCI - Vs - Nethaji Cricket Club reported in 2005 (4) SCC 741, the Supreme Court noticed that the respondent sought validity of election to be determined in the said very proceeding before the Supreme Court. However, the elected office bearers were not impleaded in the said proceeding. The Supreme Court held that in such circumstances, notwithstanding the pendency of the said proceeding, though may have been within the knowledge of the elected office bearers, the dispute as to validity of the election meeting cannot be entertained. Affording opportunity to the elected office bearers in such a dispute, held, was imperative and not a mere procedure, formality or technicality.

76. What is produced before this Court is different unpolled stamped and unstamped ballot papers of about eight to ten booths. In many cases, booklets of ballot papers have been produced in some of which there are seal on the symbol "Rising Sun"; in some of them the seal of the Presiding Officer is affixed on the symbol "Rising Sun" and in many of them there is no seal on any of the symbol; in some of them there is counter-signature of some officer in the back of the ballot papers; in some of them there is no such counter-signature of any person in the back portion, but none of them bear the name of any individual voter and admittedly all the ballot papers are unpolled ballot papers. It is alleged that they were lying on the street and in some cases it is stated that from the party members of the 5th respondent, they were snatched away by the members of the petitioner-party and produced as evidence before the petitioner's party office and then before the Court. The other evidence are three to four seals. On 13.10.06 about ten to twelve candidates were produced, who have been injured with bandage on their head or on other parts of the body. Newspaper reports of different newspapers dated 14.10.06, photographs of injury and loot of ballot papers and boxes as printed in different newspapers published on 14.10.06 or thereafter have been produced. There are complaints and police reports in 94 cases brought to the notice of the Court to suggest that some violence took place on the date of poll in the city of Chennai and 30 complaint petitions preferred by one or other political party before the State Election Commission were also produced by the State Election Commission. It was accepted on behalf of the State Election Commission that large number of complaints were received in its office apart from the thirty complaints, where grave allegations were made and where the matter was referred to the police authorities.

77. Though such documents have been produced including unpolled ballot papers with or without stamp, seals, newspaper reports with photographs, etc., but no affidavit has been sworn with respect to the documents and materials nor proved in the manner as required in the law. Neither any candidate has been impleaded as party respondent to any of the writ petition nor any elected candidate has been impleaded as party respondent after the result was declared. In the present case, no individual has been impleaded as party respondent in any of the writ petition, nor any specific mala fide has been alleged against individual. Though arbitrary exercise of power being alleged against the statutory body, no specific evidence have been shown against the State Election Commission.

78. Merely on the basis of an allegation made by one or other, the total process of election cannot be stopped. Only when the authority could arrive at a substantive satisfaction, action could be taken to cancel the poll or to order repoll, but it cannot go against the evidence on record. If the Election Commission failed to exercise its power, or exercised its power in contravention of law, penal action may be taken against it but that cannot be a ground to declare the total election as ab initio void till it is shown that failure on the part of the Election Commission has resulted in gross injustice and that there was no free and fair election. If there is two possibility and two opinion with regard to the irregularities committed or is alleged to have been committed, it is difficult to arrive at the question of facts except on the report, if any, submitted by the Polling Officer or Presiding Officer or Returning Officer or District Returning Officer or any other authority of the person or any evidence led and proved in a proceeding, after giving opportunity to the affected party.

79. When the writ petitions were filed on or immediately after 13.10.06, (i.e.) prior to counting and declaration of results of election of 155 wards of Chennai Municipal Corporation, there being a prohibition imposed under Article 243ZG, and in view of Supreme Court decisions as referred to above, this Court did not interfere with the matter under Article 226, which would otherwise amount to retarding, interrupting, protracting or stalling of the election proceeding. After the election is over and result is declared, in view of Article 243ZG and Supreme Court decisions as referred to above, the present petitions under Article 226 cannot be treated as "election petitions", as such power could be exercised only if a petition is filed in accordance with law laid down under Rule 118 to 126 of Tamil Nadu Town Panchayats, Third Grade Municipalities, Municipalities and Corporations (Election) Rules, 2006. In absence of specific pleading and presentation of the petition dehors the provisions laid down under Rules, 2006, it is not feasible for this Court to determine whether the election in one or other of the booths or wards were free and fair and thereby whether election of one or other elected councillor of a ward or the 155 wards are void and invalid.

80. This apart, there being a forum prescribed under Rule 118 of Rules, 2006, and in view of bar imposed under Article 243ZG of the Constitution and the decisions rendered by the Supreme Court in different cases as referred to above, it is not possible for this Court, under Article 226, to give any finding on merit as to whether election of one or other or all municipal councillors of Chennai Municipal Corporation held on 13.10.06 were free and fair and thereby they are void and invalid. The writ petitions are accordingly dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, in the facts and circumstances, there shall be no order as to costs. GLN

To

1. The State Election Commission

State of Tamil Nadu

Chennai.

2. The Director General of Police

Kamarajar Salai

Chennai 600 004.

3. The Commissioner of Police

Greater Chennai

Egmore

Chennai 600 008.

4. The Addl. Commissioner of Police

Greater Chennai

Egmore,

Chennai 600 008.

F.M. IBRAHIM KALIFULLA, J.

81. I had the benefit of reading the judgment of my learned brother Honourable Mr.Justice S.J.Mukhopadhaya. With great respect to the learned Judge, I am not in a position to agree with the judgment and therefore, I prefer to differ and write my own judgment as under.

82. In all these Writ Petitions, the challenge is to the local body Elections held in 155 Wards of Chennai City Corporation on13.10.2006. The petitioners seek for a declaration that the Elections held to the above referred to 155 Wards are void. One of these Writ Petitions was moved before the Division Bench on special mentioning before the Hon'ble Chief Justice on 13.10.2006. In one of the Miscellaneous Petitions, the writ petitioner sought for an injunction as against the respondents, in particular, the first respondent-State Election Commission from counting the votes for the above referred to 155 Wards as scheduled to be held on 18.10.2006. Due to paucity of time, as the interim application was being heard, and such hearing continued even on 18.10.2006, the first respondent himself postponed the date of counting to 22.10.2006. On 18.10.2006, after hearing all the parties concerned, we passed the following interim order: "When the case was taken up for hearing, the learned Advocate General appearing for the first respondent (State Election Commission) informed the Court that the first respondent after going through the records has decided to go for repoll of further 27 booths of 12 wards. He also informed that repoll will take place on 20.10.2006. He further requested the Court to allow the first respondent to count the votes of the rest of the 143 wards and after the repoll on 20.10.2006 the votes of rest of the 12 wards will be counted. He further prayed to allow the first respondent to announce the results of the elections subject to the final decision in the writ petitions.

2. Learned counsel appearing on behalf of the various petitioners opposed such request and prayed to stay the counting of the votes. It was submitted that if the counting of votes is completed and the result is announced, the writ petitions will become infructuous. To this, the learned Advocate General appearing on behalf of the first respondent as also the learned counsel appearing on behalf of the other State respondents submitted that counting will be done and the results will be declared, which will be subject to the decision in the writ petitions and thereby none of the writ petitions would be rendered infructuous; it is always open to the Court to render its decision on merits after hearing the parties.

3. Having regard to the facts and circumstances of the case, the following order is passed for the present:

i) As requested, the first respondent is allowed to go ahead with repoll of such polling stations (booths) as it deems fit and proper;

ii) It may start counting the votes of all the wards from 20.10.2006 where no repolling is taking place on the same day. After the repolling, the first respondent may also count the votes of the rest of the wards where repolling has taken place and may announce the results;

iii) Such counting and publication of the result will be subject to the decision in these writ petitions;

iv) The counting of ballot papers should be done in accordance with law with proper security to be made available by the 2nd and 3rd respondents;

v) The first respondent, while issuing appropriate certificate with regard to the declaration of successful ward councillors, will make an endorsement in the certificate that such declaration is subject to the decision in these writ petitions.

4. List the cases for further hearing for admission on 6.11.2006. The respondents may file their respective affidavits on or before 31.10.2006 after serving copies on the counsel for the petitioners and the petitioners may file their rejoinder within four days thereof."

Thereafter, the respondents were directed to file their detailed counter affidavits covering various allegations contained in the affidavits filed in support of the Writ Petitions. The Writ Petitions were posted for final hearing on 6.11.2006.

83. We have heard the learned counsel for the petitioners in various Writ Petitions and learned counsel for the respondents in the Writ Petitions. On behalf of the petitioners, detailed submissions were made by Mr.N.Jothi, learned counsel for the petitioner in W.P.No.39400 of 2006, Mr.N.G.R.Prasad, learned counsel for the petitioner in W.P.No.39438 of 2006, Mr.P.Jayaraman, learned Senior Counsel appearing for the petitioner in W.P.No.39459 of 2006, Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioner in W.P.No.39458 of 2006, Mr.Devadoss, learned counsel for the petitioner in W.P.No.39457 of 2006, Mr.Jeremiah, learned counsel for the petitioner in W.P.No.39635 of 2006 and Ms.Kalpana, learned counsel for the petitioner in W.P.No.39535 of 2006 and submissions were also made by learned counsel for the petitioners in the other Writ Petitions.

84. Mr.Jothi, in his submissions, contended that the Democracy being the basic structure, as a part of it, the voting right being a constitutional one, violation of such right would be an intrusion into the fundamental right of a citizen as enshrined under Article 19(1)(a) of the Constitution of India. Learned counsel contended that freedom of voting as distinct from right to vote being a facet of the fundamental right guaranteed under Article 19(1)(a) of the Constitution, any intrusion into such a freedom in exercising the Franchise, would call for interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. The learned counsel, by drawing the attention of this Court to various averments of the petitioner, contended that on the date of Elections, namely on 13.10.2006, there was mass rigging of almost all the Booths of 155 Wards by the supporters of the fifth respondent-Political Party and thereby, the concept of 'free and fair Elections' was seriously impaired.

85. The learned counsel, by referring to the counter affidavit of the first respondent, contended that its action in ordering re-poll in respect of 17 Booths alone and then ordering further re-poll in respect of 27 Booths after the filing of the Writ Petition when compared with various poll-related violence in different Booths, as referred to in the Annexure to the counter affidavit, was self-contradictory in itself and therefore, no sanctity could be attached to the averments of the first respondent made in its counter affidavit. In other words, according to the learned counsel, the very fact that innumerable complaints spontaneously reported from different Wards, both by the candidates (irrespective of the Political Party) as well as the Polling Officers/Presiding Officers of different Wards/Booths, in consistently referring to poll related violence and booth rigging, were sufficient to show that all was not well in the conduct of the Polls in almost all the Wards within the Corporation limits of Chennai and therefore, the first respondent ought to have exercised his constitutional mandate in taking appropriate action for stopping the polling activities and should have ordered for re-polling after ensuring a free and fair Elections. The learned counsel contended that in this context, the Court should take notice of the allegations referred to in various complaints which were received by the first respondent, the complaints which were reported by the third respondent in its counter affidavit as well as the other poll related instances such as road roko etc. along with the media reports confirming wholesale rigging in the City of Chennai in almost all the Wards at the instance of the supporters of the fifth respondent and examine whether or not the first respondent had exercised his constitutional powers as imposed on him under Article 243-K read with 243-ZA of the Constitution.

86. According to the learned counsel, when once the Court is convinced of such extraordinary situation that prevailed in the conduct of Elections on 13.10.2006, based on the above materials, the Court can easily visualise the situation where a voter would not have exercised his Democratic right in the Franchise of his own in a free and fair manner in the Elections and in the said circumstances, as free and fair Elections having been held to be part of the basic structure of the Constitution, this Court should invoke its extraordinary jurisdiction under Article 226 of the Constitution and set right the wholesale illegality perpetrated under the nose of the respondents 1 to 4, by the supporters of the fifth respondent, by declaring the whole Elections held in respect of the entire 155 Wards as null and void.

87. The learned counsel further contended that when Article 243-ZA read with 243-K of the Constitution confers the status of the State Election Commissioner on par with a Judge of the High Court, he cannot be expected to remain a silent spectator irrespective of the turbulent situation which had gripped the whole Election process in the City of Chennai and therefore, taking note of the total inaction of the first respondent and failure of his due exercise of powers vested in him, this Court should remedy the situation in the interest of the Democracy and in order to ensure purity in the conduct of Elections. According to the learned counsel, the first respondent failed in his duties by his non-performance and therefore, interference is called for.

88. The learned counsel by making a reference to Section 51-A read with 51-B and C of the Chennai City Municipal Corporation Act, contended that the first respondent had all the powers of a Civil Court and in the light of such enormous powers vested in the first respondent, both constitutional and statutory, ought to have exercised such powers independently and should have remedied the situation by stopping the Elections immediately after the wholesale rigging and unprecedented poll related violence were reported to him by the candidates as well as the Polling officials and should have ordered for re-polling of all the Wards.

89. By making a specific reference to the complaints as referred to by the first respondent and the third respondent in their respective counter affidavits, the learned counsel pointed out that out of these complaints, nearly 50% of them were preferred by the Polling officials themselves, apart from the complaints preferred by the respective candidates and when such complaints mainly highlighted wholesale Booth rigging and were related to not less than one-third of the total number of Wards, the first respondent ought to have exercised his powers in ordering the stoppage of Polling activities and ordered re-poll in the interest of Democracy.

90. The learned counsel also contended that on the uniform reporting by the media about the wholesale rigging in all the Wards of Chennai City Corporation, the first respondent ought not to have turned a Nelson's eye to such reports by merely stating that there was a free and fair Poll on 13.10.2006. According to the learned counsel, various road roko agitations and the media reports about the ballot papers having been strewn in the public roads in various parts of the City itself demonstrated the untoward happenings in most of the Booths of different Wards, which only go to show that the Polling was not peaceful in almost all the Wards within the City Corporation limits and consequently, the common voters could not exercise their Franchise without any fear and therefore, the ultimate counting of such votes polled in an unlawful manner and the declaration of results, cannot be taken to have reflected the correct state of affairs in the matter of Polling and therefore, this Court should declare the Elections to all the Wards as void and direct the first respondent to hold fresh Elections in an atmosphere where a voter can exercise his Franchise with a free mind and in a calm atmosphere and the results of such Elections alone can be held to be reflecting true expression of the minds of the people in electing their Councillors for the respective Wards.

91. According to the learned counsel, in the light of the Poll related violence and Booth rigging, the inaction on the part of the first respondent in taking corrective measures at the threshold of the Election process, and the procedure contemplated under Rules 54 and 55 of the Chennai City Municipal Corporation Rules, cannot stand in the way of any orders to be passed by this Court, inasmuch as in the absence of exercise of invocation of procedure contemplated under the said Rules by the Polling officials as well as the first respondent, a voter cannot be expected to invoke Part-10 of the Rules by filing an Election Petition, as the said remedy cannot be held to be an appropriate or efficacious one in the present situation where the process of the Election itself came to be seriously impaired at the instance of the hooligans and rowdy elements.

92. The learned counsel relied upon the following decisions in support of his submissions:

(i) 2000 (2) SCC 1 (Rameshwar Prasad (VI) vs. Union of India;

(ii) 2003 (4) SCC 399

(People's Union for Civil Liberties vs. Union of India);

(iii) 2002 (8) SCC 237 (Gujarat Assembly Election Matter, In Re);

(iv) 1993 (4) SCC 441

(S.C. Advocates-on-Record Assn. vs. Union of India);

(v) AIR 1978 SC 851

(Mohinder Singh vs. Chief Election Commissioner);

(vi) AIR 1984 SC 921 (A.C.Jose vs. Siran Pillai);

(vii) AIR 1986 SC 111 (Kanhiya Lal Omar vs. R.K.Trivedi);

(viii) AIR 1995 AP 212 (N.Kristappa Vs. Chief Election Commissioner);

(ix) 2006 (2) CTC 241 (Pon Paramaguru vs. State of Tamil Nadu);

(x) AIR 1985 MADRAS 55 (K.S.Haja Shareff vs. Govt. of Tamil Nadu);

(xi) 2000 (8) SCC 216 = JT 2000 (9) SC 529 (Election Commission of India Through Secretary vs. Ashok Kumar);

(xii) AIR 1989 MADRAS 60

(TVD Naidu vs. Commissioner,HR&CE (Admn.) Dept.);

(xiii) AIR 1999 SC 1723 (K.Venkatachalam vs. A.Swamickan);

(xiv) AIR 1996 SC 1507 (Suriender Kaur vs. State of Punjab);

(xv) 2005 (6) SCC 499 (State of HP vs. Gujarat Ambuja Cement Ltd.);

and

(xvi) ILR 2006 Karnataka 2870 (T.Hanumanthappa and others vs.

The State of Karnataka by its Secretary and others).

93. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner in W.P.No.39438 of 2006, contended that the petitioner in that Writ Petition was concerned with eight particular Booths with reference to which the petitioner alleged Booth capturing, for which complaints were preferred by the petitioner before the respondents. According to the learned counsel, the petitioner was able to show that the Ballot papers were found lying on the public roads all over the city, which must have been obviously snatched from the Polling officials by some miscreants irrespective of their Political affiliation and if that be so, it cannot be held that there was a free and fair Elections held on 13.10.2006. According to the learned counsel, such unprecedented Poll violence were reported widely by the newspapers and the media and in the said circumstances, unless Political Democracy is ensured by interference of judicial independence, which is one of the facets of the constitutional protection, the Democracy cannot be ensured. According to the learned counsel, there was total failure of Police power as well as Government machinery. It was also contended that when the petitioner rushed to this Court on noticing the wholesale violence in the form of Booth rigging at the instance of rowdy elements, the petitioner cannot be directed to take recourse to the filing of Election Petition, as that would not be the proper remedy in the facts and circumstances of the case. The learned counsel would contend that irrespective of such wholesale violence demonstrated by different persons, namely by the candidates, the Polling Officers and third parties, it will have to be held that the failure of the first respondent in remedying the situation, can only be construed as total failure of administration in the matter of Elections. The learned counsel relied upon the following decisions in support of his submissions: (i) 2006 (9) SCALE 147 (Jayrajbhai Jayantibhai Patel vs.

Anilbhai Jayantibhai Patel and others);

(ii) 2006 (7) SCC 1 (Kuldip Nayar vs.Union of India); and

(iii) 1994 Suppl (2) SCC 619

(A.Neelalohithadasan Nadar vs. George Mascrene and others).

94. Mr.P.Jayaraman, learned Senior Counsel appearing for the petitioner in W.P.No.39459 of 2006, pointed out that the petitioner anticipated such violence well in advance, that as early as on 5.10.2006, a complaint was lodged with the first respondent for providing necessary protection to ensure free and fair Polling, that complaints were already preferred in respect of 45 Wards, alleging Booth capturing and in the circumstances, it will have to be held that the wholesale rigging and violence were fully established on the date of Elections held on 13.10.2006 and therefore, this Court should exercise its extraordinary power under Article 226 of the Constitution and declare the whole of the Elections held in respect of all the 155 Wards as null and void. The learned Senior Counsel relied upon the following decisions in support of his submissions: (i) 1997 (3) SCC 261 (L.Chandra Kumar vs. Union of India);

(ii) AIR 1996 AP 37 (S.Fakruddin vs. Govt. of Andhra Pradesh);

(iii) AIR 1993 P & H 306 (Nachhattar Singh vs. State of Punjab);

(iv) AIR 1995 Delhi 182 (Gurudeep Singh Dua vs.

Delhi Sikh Gurudwara Prabandkar Committee) and

(v) AIR 2006 (NOC) Karnataka 442 (Motappa and others vs.

State of Karnataka and others).

95. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioner in W.P.No.39458 of 2006, contended that the unprecedented Poll related violence in the form of Booth rigging at the instance of hooligans, would amount to a fraud on the Constitution and therefore, due interference is called for in the Writ Petition. The learned Senior Counsel relied upon the following decisions in support of his submissions: (i) 2006 (2) SCC 1 (Rameshwar Prasad (VI) vs. Union of India);

(ii) 1999 (1) CTC 467 (U.P.State Co-operative Land Development Bank Ltd. vs. Chandra Bhan Dubey);

(iii) AIR 2004 SC 1923 (B.Singh vs. Union of India);

(iv) AIR 2002 SC 1598 (Director of Settlements, AP vs. M.R.Apparao);

(v) AIR 2003 Kerala 246 (Shaiju J.Kooran vs. State Election Commission, Thiruvananthapuram);

(vi) AIR 1997 AP 179

(Secretary, Badruka College of Commerce & Arts. vs. State);

(vii) AIR 2003 Allahabad 259 (Suraj Narain Srivastava vs.State of UP);

(viii) AIR 2002 Rajasthan 76 (Sumerchand Chhajad vs.

Administrator (SDM) G.S.Samithi);

(ix) AIR 2004 SC 561 (Guruvayur Devaswom Managing Committee vs. C.K.Rajan);

(x) 2004 (3) SCC 553 (ABL International Ltd. vs. Export Credit Guarantee Corpn. of India Ltd.) and

(xi) 1999 (III) CTC 657 (Natanam.M. vs.

The Asst. Commissioner, HR & CE).

96. Mr.Devadoss, learned counsel appearing for the petitioner in W.P.No.39457 of 2006, by referring to the averments contained in the affidavit filed in support of the Writ Petition, contended that the petitioner has referred to specific complaints in many of the Wards with due particulars about the Booth numbers and Ward numbers, which were not specifically answered by the first and third respondents in their respective counter affidavits and that when copies of the complaints were filed with the first respondent, the failure to exercise the power vested in it under Article 243-K of the Constitution in remedying the situation, would amount to serious impair on the role expected of the first respondent in the discharge of his constitutional function and therefore, this Court, in the interest of protecting the Constitutional rights of the voters, should declare the entire Elections held on 13.10.2006 as null and void and order for fresh Elections.

97. Mr.Jeremiah, learned counsel for the petitioner in W.P.No.39635 of 2006 contended that earlier, the petitioner came forward with Writ Petitions in W.P.Nos.37794 and 38852 of 2006, wherein, by order dated 12.10.2006, a learned Judge of this Court was pleased to direct the respondents to ensure free and fair Elections by giving certain directions based on the undertaking given by the first respondent and that the first respondent violated its own undertaking on the date of the Elections, namely on 13.10.2006. The learned counsel would therefore contend that this Court, while condemning the failure of due exercise of power by the first respondent in the given situation, should interfere and invoke its extraordinary power under Article 226 of the Constitution and declare the whole Elections as null and void.

98. Ms.Kalpana, learned counsel appearing for the petitioner in W.P.No.39535 of 2006, while adopting the arguments of the other counsels, placed reliance upon the following decisions:

(i) 1992 (4) SCC 305 (Janata Dal vs. H.S.Chowdhary);

(ii) 1969 (2) SCC 782 (M.Hanif vs. State of Assam);

(iii) 1987 (Supp). SCC 512 (Gujarat University vs. N.V.Rajguru) and

(iv) AIR 1995 SC 1811 (LIC of India vs. Consumer Education and

Research Centre).

99. As against the above submissions made on behalf of the petitioners, Mr.G.Masilamani, learned Senior Counsel appearing for the State Election Commission, at the outset prefaced his submissions by stating that it should be first seen whether there was an Election held and if so, whether the outcome of such an Election calls for any interference in these Writ Petitions filed under Article 226 of the Constitution. According to the learned Senior counsel, the various allegations of the petitioners have to be proved in the manner known to law and the same cannot be presumed. According to him, even the materials now placed before the Court and the affidavit-averments were not available before the first respondent, and therefore, it cannot now be stated that the first respondent could have acted differently than in the manner in which he acted then. He went on to contend that even if the first respondent has not acted in the manner expected of him, by virtue of the constitutional bar as contained in Articles 243-ZA and 243-ZG(b) of the Constitution, these Writ Petitions should be rejected. The learned Senior Counsel, after taking us through the Rules framed under Section 347 of the Chennai City Municipal Corporation Act, contended that the Rules provide for setting up of the Office of the State Election Commission with hierarchy of the officials starting from Polling Officer at the bottom to the State Election Commission at the top, prescribing the specific roles to be played, apart from the general power of superintendence conferred on the State Election Commission.

100. By referring to the decision of the Supreme Court reported in AIR 1978 SC 851 (Mohinder Singh vs. Chief Election Commissioner), the learned Senior Counsel submitted that if this Court comes to an uncontroverted conclusion of law and facts as regards the conduct of Elections, its power can be exercised in a Writ Petition under Article 226 of the Constitution, instead of directing the parties to go before the Election Tribunal. Even then, according to the learned Senior Counsel, such a power should be exercised rarely where the Court finds that it will be a needless exercise or it may not be efficacious. According to the learned Senior Counsel, the power to be exercised by the first respondent in a situation where a common voter was not in a position to cast his vote in a free and fair Election, would be based on an objective decision and not based on a subjective decision, which decision will always be subject o the judicial review.

101. The learned Senior Counsel, by referring to the re-poll ordered by the first respondent in some of the Wards, contended that such action of the first respondent cannot be tested as to whether it was within the parameters of the powers vested in him. The learned Senior Counsel contended that the various allegations based on which the relief is claimed in the Writ Petitions, will form part of the grounds for challenging the Elections before the appropriate Tribunal and the same cannot be the grounds for interference i a Writ Petition under Article 226 of the Constitution, since very many disputed questions of fact are involved with reference to which a definite finding cannot be given in these Writ Petitions based on the averments contained in the affidavits and the counter affidavits of the parties. According to the learned Senior Counsel, in Election matters, there is no concept called Election as a whole or plurality of the Elections, and therefore, there is no scope for granting the relief of a Writ of Declaration of holding the Elections to all the 155 Wards as null and void. The learned Senior Counsel relied upon the following decisions in support of his submissions: (i) AIR 1984 SC 718 (A.R.Antulay vs. R.S.Nayar);

(ii) AIR 1984 SC 1912

(Inderjit Barua vs. Election Commission of India);

(iii) AIR 1977 SC 1703 (K.K.Shrivastava vs. B.K.Jain);

(iv) AIR 1985 SC 1233 (Lakshmi Charan Sen vs.

A.K.M.Hassan Uzzaman);

(v) AIR 1988 SC 61 (Election Commission of India vs. Shivaji);

(vi) AIR 1996 SC 1595 (Boddula Krishnaiah vs.

State Election Commissioner, AP);

(vii) AIR 2000 SC 2979 = 2000 (6) SCALE 182

(Election Commission of India vs. Ashok Kumar);

(viii) AIR 2004 SC 3600 (Manda Jaganath vs. K.S.Rathnam) and

(ix) JT 2006 (9) SC 111

(Avtar Singh Hit vs. Delhi Sikh Gurudwara Management Committee).

The learned Senior Counsel concluded his submissions by saying that a public interest litigation in the regime of Election Laws is not maintainable and that the outsiders have no locus in such matters.

102. Mr.P.S.Raman, learned Additional Advocate General appearing for the Commissioner of Police and Additional Commissioner of Police, contended that as far as the Police Officers were concerned, the averments in the various affidavits posed a question as against the Commissioner/Additional Commissioner of Police as to whether on 13.10.2006, the City of Chennai was under the grip of hooligans with the support of Police. According to the learned Additional Advocate General, out of 3295 Booths comprised in 155 Wards, 592 Booths were already identified as sensitive Booths where necessary extra Police personnel were posted, while in all the other Booths, one Police Officer and one Special Officer were posted. He also pointed out that in cluster Booths, i.e. where more than one Booth was located in a premises, two additional Head Constables were posted and that in cluster Booths, were more than five Booths were located, one Additional Sub-Inspector of Police was posted. It was also stated that the Election Mobile Units were posted with Wireless connections in order to attend to the complaints that were reported then and there. According to the learned Additional Advocate General, some serious complaints were received on that day and out of 94 complaints in respect of different Booths, re-poll was ordered in 25 Booths. According to the learned Additional Advocate General, there are no sufficient materials placed by the petitioners while seeking relief in respect of 155 Wards, that the allegations contained in the various affidavits filed in support of the Writ Petitions, hardly cover 55 Booths and that the Election is like a Curate's Egg and it cannot be said that because there was something wrong in some Booths or Wards, that would vitiate the entire Elections. It was also contended that the bar provided under Article 243-ZG(b) being a constitutional one, not being a mere statutory bar, the relief under Article 226 of the Constitution cannot be granted. Learned Additional Advocate General relied upon the following decisions in support of his submissions: (i) 2005 (4 ) SCC 315 (Vithalbhai (P) Ltd. vs. Union of India);

(ii) JT 2006 (9) SC 111 = 2006 (8) SCC 487 (Avtar Singh Hit vs.

Delhi Sikh Gurudwara Management Committee);

(iii) 2005 (4) SCC 741 (BCCI vs. Netaji Cricket Club);

(iv) AIR 1996 SC 1507 (Surinder Karu vs. State of Punjab) and

(v) AIR 1999 SC 1723 (K.Venkatachalam vs. A.Swamickan).

Learned Additional Advocate General sought to distinguish the decision of the Supreme Court reported in 2006 AIR SCW 4670 = 2006 (9) SCALE 147 = JT 2006 (12) SC 34 (Jayrajbhai Jayantibhai Patel vs. Anilbhai Jayantibhai Patel and others), by stating that where the facts were uncontroverted and the denial of the remedy could have created graver injustice, the Supreme Court applied the 'Doctrine of Extrapolation'.

103. Mr.Natarajan, learned Senior Counsel appearing for the fifth respondent-DMK Political Party, in his submissions stated that the Court will have to examine whether the allegations were at least probablised. According to the learned Senior Counsel, applying Section 114 of the Indian Evidence Act, the Court will have to presume the existence of any fact in order to grant any relief. On that basis, the learned Senior Counsel contended that in the case on hand, the Court will have to conclude that the Police performed their duty properly, since in the absence of precise pleadings, no other inference could be drawn.

104. As is the practice in this Court, respective parties filed material papers in the form of typed set, which consisted of various documents, such as complaints preferred by the candidates, the Polling Officers, the transmission of such complaints by the State Election Commission to the Commissioner of Police and the compilation of such complaints received by the Commissioner of Police with details as to under what provisions of law such complaints were entertained and were being processed. That apart, on the side of the petitioners, several unpolled ballot papers, seals and other materials, which were stated to have been stealthily removed by one party or the other, were also placed before the Court, apart from the extensive media reports published immediately after the polling day. The respective counsel addressed arguments by referring to such material papers placed before the Court, drawing the attention of this Court to various particulars contained in different documents either in support or in opposition of their respective submissions. Having heard learned counsel for the respective parties and on a perusal of the affidavits filed in support of the Writ Petitions, the counter affidavits of the respondents and various materials placed before the Court including the media reports, the following facts and pleas of the parties are noted: (a) Chennai City Municipal Corporation is bifurcated into 155 Wards consisting of 3295 Polling Booths.

(b) Previous Election to Corporation of Chennai was held in October 2001.

(c) Under Section 55 of the Chennai City Municipal Corporation Act read along with Article 243-U of the Constitution, the term of Office of the Councillors of Corporation of Chennai is to be for a period of five years.

(d) As the Councillors elected in October 2001 would be laying down their Office in October 2006, Elections to the Local Bodies were announced on 19.9.2006 and notified on 20.9.2006 to be held in two phases.

(e) The first phase of Polling was to be held on 13.10.2006 and the second phase on 15.10.2006. Counting of votes was to take place on 18.10.2006 and the results were to be announced thereafter.

(f) As far as Chennai Corporation was concerned, the Elections to all the 155 Wards were held on 13.10.2006.

(g) While according to the petitioners, there were large scale violence, Booth rigging triggered by the fifth respondent-Political Party and the henchmen engaged by them and that such violence, followed by Booth rigging commenced from 7 a.m. onwards, a perusal of the counter affidavit filed by the first respondent in W.P.No.39400 of 2006 as well as the common counter affidavits filed in W.P.Nos.39457 to 39460, 39462, 39471, 39535, 39595, 39635 and 39713 of 2006, gives the following details: (i) Complaints were received by the first respondent from various Political Parties like DMK, AIADMK, CPI(M), DMDK as well as some independent candidates and Polling Officers, alleging acts of violence and Booth capturing.

(ii) Such complaints were forwarded to the Inspector General of Police (Elections), the Commissioner of Police of Greater Chennai, the Superintendent of Police, the District Election Officer and District Collector/Commissioner of Chennai Municipal Corporation for taking immediate action at their end.

(iii) Out of numerous complaints received, 30 were listed and annexed to the counter affidavit dated 15.10.2006 filed in W.P.No.39400 of 2006.

(iv) 55% of the voters exercised their Franchise in the Polling held on 13.10.2006 as against 36% in the Elections held in October 2001.

(v) The details of 30 complaints mentioned in the Annexure to the counter affidavit related to various acts of violence, bogus voting, Booth capturing, security threat and snatching of Ballot boxes.

(vi) Complaints received by the first respondent were in respect of Ward Nos.8, 11, 20, 27, 54, 59, 82, 84, 91, 95, 106, 110, 117, 120, 122, 124, 125, 126 and 130 (totally 19 Wards).

(vii) The re-polling ordered by the first respondent related to Ward Nos.23, 35, 45, 48 and 149 (totally five Wards).

(viii) The five Wards in which re-polling in respect of 17 Booths were ordered to be held on 15.10.2006, were not one of those 19 Wards with reference to which admittedly complaints were received by the first respondent.

(ix) There were instances of snatching away of unpolled Ballot papers and empty Ballot boxes. While empty Ballot boxes were stated to have been recovered, according to the first respondent, missing Ballot papers were substituted.

(x) Of the 30 complaints mentioned in the Annexure to the counter affidavit of the first respondent dated 15.10.2006 in W.P.No.39400 of 2006, specific complaints of bogus voting and Booth capturing related to Ward Nos.125, 117, 120, 110, 138, 126, 84, 123, 147, 130, 11, 27, 122, 145, 124 and 54 (totally 16 Wards) and most of the complaints were made by the candidates themselves. (xi) According to the first respondent, the re-polling in 17 Booths in Ward Nos.23, 35, 45, 48 and 149 were ordered based on the report made by the Commissioner, Corporation of Chennai in exercise of the requirement under Rule 55 of the Tamil Nadu Town Panchayats, Thrid-Grade Municipalities, Municipalities and Corporations (Elections) Rules, 2006. (xii) Missing of Ballot papers was also reported by the Returning Officers with reference to which also complaints were lodged with the Police on 13.10.2006.

(xiii) Apart from re-polling ordered in respect of 17 Booths, further re-polling was ordered in respect of 27 Booths after the filing of the Writ Petitions. (The first respondent in his counter affidavit dated 29.10.2006 filed in W.P.No.39457 of 2006 etc., stated that such re-polling in 27 Booths were ordered as suggested by this Court). (xiii.a) Even in this counter affidavit dated 29.10.2006 of the first respondent in W.P.No.39457 of 2006 etc., it was reiterated that numerous petitions/complaints were received over phone as well as in person which were forwarded to the Police authorities.

(xiv) According to the Commissioner of Police, the authority of the Police at the time of holding of Local Body Elections was only to maintain law and order and the Commissioner of Police has nothing to do with the alleged incidents inside the Electoral Booths, unless the concerned Election Officer lodged any complaint with the Police authorities. The Police authorities faced some law and order problem after the Polling was closed and they were effectively handled by the Police authorities. 59 cases were registered, in which 129 people were arrested. Apart from the above, 30 cases of road-roko, unauthorised demonstrations and related offences were registered and 1216 persons were apprehended under Section 151 Cr.P.C. who were later released. That apart, nine other minor instances were quelled at the threshold and no cases were registered. (xv) In 3295 Booths, no complaints were registered with the Police for Booth capturing by any of the Polling Officers and in respect of 17 Booths alone, irregularities were reported to the State Election Commissioner, resulting in orders for re-polling.

(xvi) A few sporadic instances were highlighted in some sections of the media and projected as if there was city-wide disturbance of law and order and Poll related violence.

(xvii) Such instances were blown out of proportion by the

petitioners and the media and a false impression was sought to be created.

(xviii) The State Election Commission (the first respondent in W.P.No.39400 of 2006) was in constant touch with the Police authorities throughout the day and was monitoring the situation not only in respect of the City, but in respect of the whole State with which he was concerned.

(xix) In the counter affidavit of the third respondent-Commissioner of Police dated 9.11.2006 in W.P.No.39471 of 2006, the third respondent specifically denied the allegations regarding bogus voting and Booth capturing. It was also stated therein that no complaint was forwarded by any of the Officers concerned as regards the bogus voting. (h) In the counter affidavit of the third respondent dated 9.11.2006 filed in W.P.No.39438 of 2006, it is stated that based on a complaint given by one Tmt.Devi, a candidate of CPI(M) against Thiru.Babu, MLA belonging to the fifth respondent-Political Party, a case was registered in CSR.No.236/06 in G.5 Secretariat Colony Police Station, which was subsequently registered as Crime No.778 of 2006 in the same Police Station for the offences under Sections 147, 323, 341, 352 and 294(b) IPC and the MLA was arrested and subsequently released on bail and the case is under investigation. (i) In the Annexure filed to the same counter affidavit, details relating to the complaints lodged with the Police by private parties as well as Presiding Officers have been mentioned. As per the details furnished in the Annexure, the following further facts can be noted, namely:

(1) Complaint relating to Ward No.35 was received from A.R.O. Thiru.Michael Albert, which was registered in Crime No.1222 of 2006 for the offences under Sections 135-A and 136-B, C and F of the Representation of People Act read with Section 66-M of the Madras Municipal Corporation Act and the said complaint related to destroyal of Polling materials and sealed Ballot boxes by a mob. (2) A complaint was received from A.R.O. M.B.Nandakumar regarding the entry of a mob inside the Booth mutilating Ballot papers

beyond recognition in a Polling Booth in Ward No.130.

(3) A complaint was received from Thiru.Sampathkumar, A.R.O. against some unknown persons damaging the Ballot papers and casting of bogus votes in Ward No.45.

(4) A complaint was received from Thiru.Thangabala, A.R.O. against some unknown persons alleging entry into certain Booths in Ward No.59, who were stated to have snatched the Ballot papers and Polling materials.

(5) Another complaint was received from the same Thangabala, A.R.O. against some unknown persons alleging entry into another Booth in Ward No.59.

(6) The same counter affidavit also mentions about certain other complaints received from the candidates alleging Booth capturing, removal of Ballot boxes, Polling materials, intimidation of voters, assault and violence.

(j) In the counter affidavit filed by the Commissioner of Chennai Corporation/District Election Officer in W.P.Nos.39457, 39459, 39460, 39462, 39471 and 39635 of 2006, it was specifically stated that wherever complaints regarding snatching of Ballot papers were alleged in the Writ Petitions, the respective Polling Officers lodged complaints with the local Police and the Ballot papers were substituted immediately from the reserved papers. It was also admitted therein that some miscreants snatched and damaged the reserve Ballot boxes and as against them, complaints have also been lodged. According to him, the snatching of Ballot papers and spare Ballot boxes did not affect the Polling process. According to the Commissioner of Corporation of Chennai, wherever miscreants disturbed the Polling process, re-poll was ordered, which was in the order of 44 Booths. (k) The Director General of Police, the second respondent in W.P.No.39400 of 2006 filed a counter affidavit in one paragraph adopting the counter affidavit filed by the Commissioner of Police, the third respondent. The DGP also filed a counter affidavit dated 8.11.2006 in the same manner in W.P.Nos.39595, 39457 and 39458 of 2006. Apparently, the subsequent counter affidavit of the DGP was necessitated because of another counter affidavit filed by the Commissioner of Police (the third respondent), which was dated 9.11.2006. (l) On behalf of the DGP, a set of papers were filed captioned as "Instructions" issued by him, wherein, in one of the Memoranda dated 25.9.2006, in paragraph 2(v), it was stated "While booth-capturing of the kind witnessed in some of the northern states is not a significant phenomenon in this State, there have been a few incidents of interference with the Polling process by theft or causing damage of ballot material." (m) In the counter affidavit filed by the fifth respondent-Political Party (DMK) in W.P.No.39400 of 2006, the statement relevant to the issue involved was to the effect that the AIADMK party-men were instigated by its leader to capture Booths and lash out violence and indulge in rigging activities and that attempts were made by the AIADMK MLAs and its party-men to carry out the instructions of their leader and as such, they indulged in violent activities on 13.10.2006. According to the fifth respondent-DMK party, the entire drama was a pre-planned one and stage-managed by the AIADMK in order to gain importance among the general public. (n) There was a newspaper report dated 14.10.2006 to the effect that the State Election Commission was not in a position to respond to various telephone calls on the date of Polling, namely on 13.10.2006, since he had a sudden health set-back (diarrhoea).

(o) There was also a media report that one DGP (Training) by name Thiru.S.Ramani, that when he went to cast his vote at 9 a.m. in the Polling Booth located at Rani Meiammai School in Mylapore, he was informed by the Police in Mufti that the Polling Booth was closed due to violence and that he was also informed that he will not be able to cast his vote even in the evening, since the Polling Booth was once and for all closed. (p) Large amount of ballot papers were placed before the Court, some of which contained signatures of the Polling Officers and the column relating to the signature of the voter and certain other details were however found to have been not filled up in many of such Ballot papers. Invariably, in such Ballot papers, the mark was found in the "Rising Sun" symbol belonging to DMK Political Party. (q) Except the complaint made by one Thiru.T.K.S.Elangovan, Organising Secretary of the DMK, which was forwarded by the State Election Commission to the Commissioner of Police for taking necessary action at once and inform him about the action, all other 29 complaints which were filed before the Court contained the seal of the Tamil Nadu State Election Commission transmitting such complaints for necessary and immediate action and report by Fax, signed on behalf of the Secretary. (r) There was wide media report as per the newspaper clippings filed before the Court, reporting about the Elections held on 13.10.2006 captioned as under: "Blot over Ballot", "Chennai Corporation Code: Day of the Dhadhas", "Gang captured Ripon Building Booth" and "Bedlam in Chennai". (s) Complaints were also preferred by some of the voters to the State Election Commission about Booth capturing.

(t) The report of the Observer-I of Corporation of Chennai addressed to the State Election Commission, stating that he received more than 500 calls, that he made physical verification and solved them immediately and majority of the calls were found to be false on field visits and that he also stated that he spent major part of the day in Zone Nos.8,9 and 10. Similar such report was made by the Observer-II and the Observer-III in their respective Zones of Corporation of Chennai. (u) The Commissioner, Corporation of Chennai in his report dated 15.10.2006 to the first respondent mentioned about snatching of Ballot papers by an unruly mob from the Polling station when the Poll was in progress on 13.10.2006 (wrongly mentioned as 13.11.2006) in three Booths in Ward No.15 and in some other Booths, namely 2304-W, 2304-M and 2304-AV. His report also mentions about the missing of Ballot papers reported by one other Returning Officer. (v) It is stated in the affidavit filed in support of W.P.No.39400 of 2006, in para 3 that " ... The first respondent is the State Election Commission headed by an IAS Officer by name Thiru.D.Chandrasekaran who is a close relative of a DMK Minister in the Tamil Nadu Cabinet. He is a conferred IAS Officer and is not a direct recruit. .." (w) In the affidavit filed in support of different Writ Petitions, it is alleged that bogus voting was done in the various Wards and that complaints were lodged with the concerned authorities. The concerned Writ Petitions and the respective Wards referred to therein are as under:

+========================================================================+

| Sl.No. | W.P. No. | Ward No. |

|~~~~~~~~~~~~~~~|~~~~~~~~~~~~~~~~~~~~~~~|~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~|

| 1 | 39457/2006 | 22, 27, 66, 76, 81, 83, |

| | (para 5) | 92, 102, 105, 127, 134, |

| | | 137, 130 and 151 |

|---------------|-----------------------|--------------------------------|

| 2 | 39459/2006 | 9, 36, 49, 53, 54, 56, 57, |

| | (para 3) | 63, 64, 65, 66, 67, 68, 70, |

| | | 73, 74, 79, 80, 81, 82, 83, |

| | | 84, 86, 103, 118, 119, 120, |

| | | 121, 122, 124, 126, 128, 130, |

| | | 132, 133, 135, 137, 138, 139, |

| | | 140, 141, 142, 144, 150, 152 |

|---------------|-----------------------|--------------------------------|

| 3 | 39458/2006 | |

| | (paras 6 and 20) | 147, 149, 89, 125, 95 and 96 |

|---------------|-----------------------|--------------------------------|

| 4 | 39471/2006 | |

| | (para 3.a) | 95 |

|---------------|-----------------------|--------------------------------|

| 5 | 39462/2006 | |

| | (para 2) | 88 |

|---------------|-----------------------|--------------------------------|

| 6 | 39460/2006 | |

| | (para 2) | 154 |

|---------------|-----------------------|--------------------------------|

| 7 | 39635/2006 | |

| | (para 3) | 113 |

|---------------|-----------------------|--------------------------------|

| 8 | 39595/2006 | |

| | (paras 3 &4) | 52 |

|---------------|-----------------------|--------------------------------|

| 9 | 39535/2006 | |

| |(para 5) | 143, 151, 147, 125 |

|---------------|-----------------------|--------------------------------|

| 10 | 39713/2006 | |

| | (para 11) | 102 |

|---------------|-----------------------|--------------------------------|

| 11 | 39438/2006 | 12, 35, 45, 59, 103, 69, |

| |(para 3) | 130 & 142 |

+========================================================================+

(x) The counter affidavits filed by the first respondent (State Election Commission), the third respondent (Commissioner of Police) and the Annexure filed along with them, disclose the filing of complaints about bogus voting and booth rigging in the following Wards:

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

|Sl.| Counter affidavit of | Counter | |

|No.| first respondent in | affidavit | |

| | W.P. No. | of third | Ward Nos. |

| | | respondent in | |

| | | W.P. No. | |

| | | | |

| | | | |

|===|=======================|=================|=============|

| 1 | - | 39438/2006 | 45, 59, |

| | | (para 13) | 103, 35, |

| | | (Annexure) | 130, 12, |

| | | | 142, |

|~~~|~~~~~~~~~~~~~~~~~~~~~~~|~~~~~~~~~~~~~~~~~|~~~~~~~~~~~~~|

| 2 | Compilation of | | 104, 125, |

| | complaints received | | 20, 59, |

| | by first respondent | | 129, 117, |

| | as filed in | | 120, 110, |

| | W.P. No.39400 of 2006 | | 138, 126, |

| | | | 84, 8, |

| | | | 123, 147, |

| | | | 130, 11, |

| | | | 27, 122, |

| | | | 145, 124, |

| | | | 54, |

| |--------------------- | -- | ----------- |

| | and counter | | 8, 11, 20, |

| | affidavit in | | 27, 54, |

| | W.P. No.39400 of 2006 | | 59, 82, |

| | (para 14) | | 84, 91, |

| | | | 95, 106, |

| | | | 110, 117, |

| | | | 120, 122 |

| | | | 124, 125, |

| | | | 126 and 130 |

|~~~|~~~~~~~~~~~~~~~~~~~~~~~|~~~~~~~~~~~~~~~~~|~~~~~~~~~~~~~|

| 3 | Compilation of | | 97, 78, |

| | details of complaints | | 119, 65, |

| | lodged with the | | 130, 131, |

| | Police (filed by the | | 125, 132, |

| | third respondent) | | 122, 59, |

| | | | 95, 109, |

| | | | 139, 155, |

| | | | 153, 154, |

| | | | 109, 80, |

| | | | 111, 31, |

| | | | 37, 8, |

| | | | 36, 81, |

| | | | 14, 18, |

| | | | 19, 2, |

| | | | 4, 6, |

| | | | 147, 55, |

| | | | 129, 9, |

| | | | 149, 42, |

| | | | 40, 45, |

| | | | 102, 89, |

| | | | 113, 77, |

| | | | 26, 23, |

| | | | 48, |

| | | | 79 to 84, |

| | | | 130 to 135, |

| | | | 35, 123, |

| | | | 124, 53, |

| | | | 117, 118 |

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

--

(y) The particular Wards where re-poll was originally ordered and held by the first respondent as per the details provided in the material papers:

============================================================

Ward Nos. Polling Stations

------------------------------------------------------------

23 394 (W)

35 549 (M), 549 (W), 550 (M), 550 (W),

551 (AV),552 (M), 552 (W), 553(M),

553(W), 554(M), 554 (W), 555 (AV),

556 (AV)

------------------------------------------------------------

45 654 (M)

------------------------------------------------------------

48 678 (AV)

------------------------------------------------------------

149 2334 (AV)

============================================================

(z) The particular Wards where re-poll was subsequently ordered and held by the first respondent after the filing of the Writ Petitions and as furnished in the material papers:

+++++++++++++++++++++++++++++++++++++++++++++++++++++++

Ward Nos. Polling Stations

=======================================================

11 251 (AV), 252 (AV)

-------------------------------------------------------

12 263 (AV)

-------------------------------------------------------

13 276 (AV), 277(AV), 278(AV)

-------------------------------------------------------

15 310 (AV)

-------------------------------------------------------

28 452 (AV), 454(AV), 458 (AV)

-------------------------------------------------------

59 832 (AV)

-------------------------------------------------------

64 1019 (M), 1028 (M), 1029 (M)

-------------------------------------------------------

69 1172 (M), 1177 (AV)

-------------------------------------------------------

97 1538(AV), 1539(AV), 1540(AV),

1542(AV)

-------------------------------------------------------

137 2156 (W), 2157 (AV), 2161 (AV)

-------------------------------------------------------

147 2304 (M), 2304 (W)

-------------------------------------------------------

151 2364 (AV), 2365 (AV)

+++++++++++++++++++++++++++++++++++++++++++++++++++++++

(aa) From the above particulars, it transpires that out of 155 Wards, there were complaints pertaining to 99 Wards, and the re-poll was ordered in 47 booths in 17 wards alone.

105. It is in the above said background that prevailed on 13.10.2006, various claims of the petitioners have to be considered.

106. As far as the holding of Elections to the Local Bodies is concerned, the same is governed by Part-IX.A of the Constitution of India. Under Article 243-U of the Constitution, duration of every Municipality/Corporation unless sooner dissolved under any law for the time being in force, should continue for five years from the date appointed for its first meeting. Under Article 243-ZA, the superintendence, direction and control to the preparation of Electoral Rolls for and the conduct of all Elections to the Municipalities, are vested in the State Election Commission referred to in Article 243-K. Under Article 243-ZG(b) of the Constitution, no Election to any Municipality should be called in question, except by an Election Petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of the State. Article 243-ZG of the Constitution is similar to Article 324, which pertains to the powers invested with the Election Commission of India, which concerns the Elections to Parliament and Legislature of every State.

107. Chapter-III of the Chennai City Municipal Corporation Act deals with the Election and appointment of Councillors of Chennai City Corporation. Under Section 51-A of the Chennai City Municipal Corporation Act, the powers of the State Election Commission have been prescribed. Section 54-A of the Chennai City Municipal Corporation Act stipulates that no Election of a Mayor or a Councillor should be called in question except by an Election Petition presented to the Principal Judge of the City Civil Court, Chennai, within 45 days from the date of publication of the result of the Elections published under Section 53. Section 54-B of the Chennai City Municipal Corporation Act mentions the grounds under which an Election can be declared to be void. Section 54-C of the Chennai City Municipal Corporation Act elaborates the corrupt practices for the purpose of the Act, which is one of the grounds for challenge to be made in an Election Petition. Section 59 of the Chennai City Municipal Corporation Act empowers the State Government to make rules in consultation with the State Election Commission for regulating the procedure with regard to the Elections. Under Section 347 of the Chennai City Municipal Corporation Act, the State Government is empowered to make Rules to carry out all or any of the purpose of the said Act not inconsistent therewith.

108. The State Government in exercise of the powers conferred under Section 347 of the Chennai City Municipal Corporation Act, as well as similar other enactments concerning the Municipalities and other Corporations, has framed the "Tamil Nadu Town Panchayats, Third-Grade Municipalities, Municipalities and Corporations (Elections) Rules, 2006, and among other things, Rules 35 to 57 falling under Chapter-III Part-5 deal with the conduct of the Poll in regard to the Local Bodies including Chennai City Corporation. Rule 54 of the said Rules, 2006 contains the stipulations under which the stopping of Poll can be ordered by the Presiding Officer when the proceedings at any Polling station are interrupted or obstructed by any rowdy or open violence or such other grounds and inform such stopping of Poll to the State Election Commission through the Returning Officer. Under Rule 55 of the said Rules, 2006, if in any Election, there were damages to the Ballot boxes or Ballot papers, either when use at a Polling station or at a place appointed for counting of votes, the State Election Commission or the State Election Officer can pass such orders for holding a fresh Poll or such other directions to the Returning Officer.

109. On a reading of Article 243-ZG(b) of the Constitution read along with Section 54-A of the Chennai City Municipal Corporation Act, it is clear that any challenge to an Election of a Councillor can be only by way of an Election Petition presented to the Principal Judge of the City Civil Court, Chennai within 45 days from the date of publication of the results of the Elections. As far as the grounds to be raised in such Election Petition is concerned, the same are set out in detail in Section 54-B of the Chennai City Municipal Corporation Act.

110. The allegations that have been made in these Writ Petitions pertain to wholesale Booth rigging and such allegations are directed as against the supporters of the fifth respondent-Political Party. To be more precise, the allegations are that in almost all the Booths of 155 Wards, at the instance of the fifth respondent-Political Party and the Police authorities by remaining silent spectators, total vandalism prevailed in every Booth, which resulted in the henchmen of the fifth respondent-Political Party indulging in bogus voting to a very large extent and thereby, none of the genuine voters in any of the Wards were able to cast their vote according to their choice of the candidate. The said allegations, if were to be raised in an Election Petition, it would fall under Section 54-B(1)(b) of the Chennai City Municipal Corporation Act. The said sub-clause (1)(b) of Section 54-B reads that, "any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent". Section 54-C of the Chennai City Municipal Corporation Act describes what are all to be deemed as corrupt practices. Sub-section (2) of Section 54-C states that undue influence as defined in Clause (2) of Section 123 of the Representation of People Act, 1951, should be deemed to be one of the corrupt practices. Section 123(2) of the Representation of the People Act states that undue influence is to mean any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. The allegation of wholesale bogus voting with the aid of the so-called henchmen of the fifth respondent-Political Party by snatching the ballot papers from the Polling Officers would prima-facie appear to fall under the definition of "corrupt practices".

111. On a deeper scrutiny of the allegations made, it will have to be noted that unlike a candidate who lost in an Election and who would come forward with an allegation of bogus voting at the instance of a successful candidate in respect of a particular Ward, in the case on hand, the allegations are that almost in all the Booths covering 155 Wards, at the behest of hooligans, the Booths were captured, while the Police personnel posted remained mute spectators and the voting process was carried out by the said persons in an unruly manner, which in effect deprived the genuine voters of the respective Wards to refrain themselves from going near the Booths and cast their votes.

112. The question therefore that falls for consideration is whether in such a situation, could it be said that the remedy provided under Section 54-A, B and C of the Chennai City Municipal Corporation Act should be directed to be invoked for the redressal of the grievances. To have a broader spectrum of the scenario that existed on 13.10.2006, it will be appropriate to state in detail how this Court was moved at the instance of the petitioners on the date of Elections. On the date i.e. on 13.10.2006, when Polling for Elections of 155 Wards was in progress, a special mentioning was made on behalf of one of the petitioners (AIADMK) to the Honourable Chief Justice for immediate hearing of the Public Interest Litigation on the ground that the ruling party-men i.e. personnel of the fifth respondent-Political Party (DMK) were committing serious irregularities, engaged Goondas, caused a large scale violence and after attacking the rival candidates, their party-men and others captured most of the Polling Booths in all the 155 Wards. On an urgent motion on 13.10.2006 itself, the case was taken up and the respondents were served with notice and on their appearance, the case was heard in detail at the stage of admission for its final disposal.

113. Learned counsel for the petitioner-AIADMK, would submit that the Public Interest Litigation was filed in order to uphold the majesty of law, rule of law and for maintenance of truth and functioning of democracy in the Local Body Elections expected to be conducted under the superintendence, directions and control of the State Election Commission. The basic principle of the Constitution was to achieve the administration of Local Bodies to serve the public at the basic level for which Part IX (Panchayat) and Part IX-A (Municipality) consisting of Articles 243 to 243-ZG was incorporated effective from 24.4.1993 to achieve a democratic and republican institution from its grass-root level. It is alleged that the first respondent, the State Election Commission has been gained from the clout of the DMK party-men and in connivance with the said party members, has allowed indulgence of large scale violence resulting in booth capturing. According to the petitioner-AIADMK, it had more number of supporters in the Chennai city, considered to be their bastion. The 5th respondent-DMK party, known for its atrocities, dare-devil activities, unmindful of law and order, etc., sensing that if the elections are held properly, the 5th respondent-DMK party may not succeed and so they pre-planned, scripted, rehearsed and dramatised on 13.10.2006, right from the first minute of the poll, namely, 7.00 a.m. itself and adopted the following modus operandi in all 155 wards to rig the polls. > The rowdy elements were getting prepared the previous night itself with dangerous weapons like sickles, knives, broad blades, etc., and each of them went on rounds in vehicle allotted to them by the 5th respondent-DMK party and went to each booth.

> With all such weapons, they entered the booth, attacked the polling agents of other parties mercilessly excluding the agent of the 5th respondent-DMK party and by forcible eviction, the booths were captured.

> The rowdy elements were followed by the police, ironically not to prevent them, but to protect them while they were perpetrating the crime.

> They stood by their side enabling the 5th respondent-DMK partymen to stack ballots, forcibly seized from the polling officers and started piling it up in the ballot boxes by affixing the seal on the 'Rising Sun' symbol and other fraternal parties i.e., allies of 5th respondent-DMK partymen, which are contesting the elections.

114. It is further alleged that when the information of booth capturing was received by the headquarters of the petitioner-AIADMK party, efforts were made to contact the Commissioner of Police, Greater Chennai, the Additional Commissioner of Police, Greater Chennai, etc. From the few, who could be contacted, they were not in a position to respond. The Commissioner of Police and Additional Commissioner of Police, Greater Chennai, in a parrot-like repetition went on stating that the polling was peaceful. While conversation was maintained with these officers, the injured candidates, the injured public and the injured AIADMK partymen were trailing one by one and in batches to the headquarters of the petitioner-AIADMK party. All these were happening within a few minutes of the commencement of the polling. In every ward, such incident took place and hundreds of people were injured. Many of them did not want to get admitted in the Government Hospital, since Tamil Nadu Police were well trained to book cases against the very injured persons at the instance of the 5th respondent-DMK party. Hence, they were getting their treatment done in private hospitals. According to the petitioner, such incident indicated how public are fearful of Government organisations irrespective of their position i.e., police or hospital or the revenue department. The IAS and IPS officers on whom the total nation is depending, it was alleged that those civil and public administration were hand in glove with the ruling party-DMK for small personal benefits. Information started coming from various booths and wards indicating that what was happening was not polling, but a pitch battle, wherein rowdy elements with the support of the 5th respondent-DMK partymen ransacked the polling booths and in many places the staff managing the booths were made to flee from the scene to save their lives and, thereafter, the ballot papers were seized and stacked in the ballot boxes in a leisurely manner. It was also submitted that of the persons, who captured the booths, finding some discomfort in operating inside the polling booths, those rowdy elements took the ballot papers and ballot boxes outside the polling booths and in the shade of a tree they started casting the votes in favour of the 5th respondent-DMK party symbol, "Rising Sun". A few courageous AIADMK men and persons of other political parties seized those ballot papers from them and brought the same to the headquarters of the AIADMK party and the same was exhibited to the Press and public, where it could be seen that the Presiding Officers have appended their signatures already and the same was utilised by the DMK men to cast the votes.

115. It was further alleged that when the General Secretary of the AIADMK party insisted that she has to vote, respondents made arrangements for police protection as she was under "Z-Plus" security. Hence, the captured booths were relieved for a short interregnum enabling her to enter, wherein no person was present, and after she cast her vote and left the scene, the booths were captured again.

116. Further, it was alleged on behalf of the petitioner-AIADMK party that the Chennai City was highly surcharged, the voters were terrorised, the candidates of opposition political parties and independent candidates were terrorised, beaten and attacked with dangerous weapons. They fled from their respective wards from which they were contesting and, thereafter, the polling agents, other than the polling agents of the DMK party were sent out and the booths were captured and votes were cast in favour of the symbol "Rising Sun" throughout the 155 wards in the same pattern. In many polling booths, advocates were made as polling agents and for many wards, party advocates were made as chief agents. There were about 27 advocates, who were contesting as candidates of AIADMK and all of them have undergone the same experience of either having been beaten or threatened or thrown out or prevented or made to run away from the polling booth. It was submitted that the aforesaid act on the part of the rowdy elements indicated the level at which the police and rowdies were ruling the Chennai metro and the police were not doing its duty, which is intended for them. It was alleged that in many polling booths, even by 12.00 noon, polling officers declared the elections over and they closed the gates and the police were informing the public that no one should enter the polling booths since all is over. It was in this background, it was submitted, that about forty advocates, who were present at the headquarters of AIADMK represented to the Hon'ble the Chief Justice and by explaining the same in person and on the permission of the Hon'ble the Chief Justice, the said writ petition was hurriedly prepared and filed.

117. It is submitted that similar was the ambience at the time of Madurai Central Assembly by-election, but because of the intervention of the Election Commission of India and the Madurai Bench of the Madras High Court, polling was smooth and peaceful at Madurai, whereas in the local body election, it has been conducted by the State Election Commission, which is totally in the pocket of the ruling DMK party. The very fact that terrorism has been let loose at every polling booth, according to the petitioner, the same is indicative that the polling process was not at all done in accordance with law. It was not a free and fair election.

118. On 13.10.2006, in the afternoon when the case was taken up, about thousand persons gathered inside the Court premises and after much persuasion about a hundred and odd persons alone were allowed to watch the proceedings inside the Court and about ten to fifteen members of lawyers and other persons were produced before the Court with injury in support of the claim as made by the petitioner in the writ petition. A large number of unpolled ballot papers of about eight to ten booths with stamp on 'Rising Sun' symbol or without stamp were produced in many of which there were signatures of some officer in the back portion, but many of them were also blank.

119. I am narrating the aforesaid facts, as all these documents were produced before the Court and on request were kept separately and shown to the learned Advocate General, the counsel for the State of Tamil Nadu as also the counsel for the State Election Commission. The case was initially adjourned to 16.10.2006, but in the meantime, a large number of writ petitions (PIL) were preferred with regard to the said election held on 13.10.2006 at Chennai. It includes writ petitions preferred by the political parties such as Bharathiya Janata Party, Communist Party of India (Marxist), Marumalarchi Dravida Munnetra Kazhagam, Desiya Dravida Murpokku Kazhagam, Lok Paritan, etc. In all these petitions, similar allegations have been made and almost same relief has been sought for i.e., to declare the election to 155 wards of Ward Commissioners of Chennai Municipal Corporation held on 13.10.2006 as illegal and void.

120. On 17.10.2006, the State Election Commission appeared and informed that re-election has been ordered and held in 17 booths. On the suggestions the State Election Commission accepted to look into the allegations afresh to find out whether it requires repoll in any one or more polling booths or wards. On 18.10.2006 counsel for the State Election Commission informed the Court that the State Election Commission, after going through the records, had decided to conduct repoll for further 27 booths of 12 wards, which would take place on 20.10.2006. At the request of the State Election Commission, the Court allowed the said respondent to conduct repoll in 27 more booths of 12 wards and to start counting of votes in the rest 143 wards. It was also permitted to count the votes of the rest of the 12 wards after repoll is over on 20.10.2006, but it was ordered on 18.10.2006 that the counting of votes and the publication of results will be subject to the decision in these writ petitions. Pursuant to such permission, repoll was conducted in 27 more booths apart from the 17 booths where repoll took place earlier and thus repoll has been conducted by the State Election Commission in a total of 44 booths out of 3295 booths consisting of 155 wards of the Chennai Municipal Corporation. It is informed at the Bar that against the interim order, the petitioner-AIADMK moved before the Supreme Court in SLP, but it was not entertained and only clarification was made that the counting of votes will start on 20.10.2006 from 2.00 p.m. It is further informed at the Bar that some persons have also moved before the Supreme Court challenging the very same election with similar relief and the writ petitions under Article 32 of the Constitution of India is pending before the Supreme Court, but no date has been fixed for the hearing.

121. The sum and substance of the grievance was that there was no election at all as the Electors were not allowed to vote and their Electoral Rolls were not allowed to be freely exercised. On the other hand, according to the petitioners, a gang of persons snatched the Ballot papers and put them in the ballot boxes. The Polling Booths having been closed at 9 a.m. and/or 11 a.m. and the voters having been told that the Polling was over, what has actually happened on the Polling day, namely on 13.10.2006 cannot be called to be an Election at all.

122. It was vehemently contended by learned counsel appearing for the petitioners that the manner in which the Election was conducted at the behest of the first respondent-State Election Commissioner was a mockery of an Election and that the democracy was burried in that process. It is one thing to say that whatever may be the nature and extent of grievance expressed on behalf of the petitioners vis-a-vis the manner in which the Election was conducted, the remedy of the aggrieved candidates or for that matter, in person, is to work out their remedy by way of an Election Petition before the Principal Judge of the City Civil Court, Madras and another thing is to find out whether the situation described can be stated to be the one which was not covered by the usual grounds available under Section 54-B of the Chennai City Municipal Corporation Act, but would stand apart and to be examined differently for providing any other solution to the vexed issue.

123. Before ever I take a definite conclusion, I shall examine the legal position as set out in the various relevant decisions of the Supreme Court and other High Courts in Election matters and also the jurisdiction of this Court under Article 226 of the Constitution vis-a-vis the alternative remedy provided under the statute.

124. In the forefront, the decision of the Supreme Court reported in 1970 (3) SCC 147 (Rampakavi Rayappa Belagali vs. B.D.Jatti) can be referred to in order to highlight the importance of a free and fair Poll, which has been described as a foundation of the democracy by the Supreme Court. Paragraph 21 of the said judgment of the Supreme Court is relevant,wherein it is stated as under: "21. .... Free and fair elections are the very foundation of the democratic institutions and just as it is said that justice must not only be done but must also seem to be done; similarly, the elections should not only be fairly and properly held, but should also seem to be so conducted as to inspire confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our country when the police and the Government officers create even an impression that they are interfering for the benefit of one or the other candidate. ..." (emphasis added)

125. In the decision of the Supreme Court reported in AIR 1978 SC 851 (Mohinder Singh vs. Chief Election Commissioner), in the concluding part of the decision in paragraph 91(2)(a) and (b), V.R.Krishna Iyer,J, has stated as under:

"91.(2)(a): The Constitution contemplates a free and fair election and vests comprehensive responsibility of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection, with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Art.324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition." Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of the natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. .. " (emphasis added)

Again in the concurring judgment in the above said decision reported in AIR 1978 SC 851, Goswami,J, with regard to Article 324 of the Constitution, observed in paragraph 113 as under:

"113. ... Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen or anticipated with precision. That is why there is no hedging under Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules." (emphasis added)

126. In the decision reported in AIR 1995 AP 212 (N.Kristappa Vs. Chief Election Commissioner), a learned single Judge of the Andhra Pradesh High Court has thus to say as regards the plenary powers of the Election Commission under Article 324 of the Constitution, in paragraph 23, which reads as under:

"23. Instances are glaring when the election process is thwarted by musclemen by booth-capturing and destroying ballot boxes. At times, when a candidate of certain recognised political party dies during the election process, election to the particular constituency is countermanded. When natural calamity occurs, polling is re-scheduled. The Representation of the People Act has met these contingencies by incorporating necessary provisions in the Act. No provision is contemplated either in the Representation of the People Act or the rules made thereunder to meet a contingency arising out of a situation where a candidate has been abducted and prevented from filing his or her nomination papers. And therefore, in the absence of any specific provision to meet a contingency of this nature, the Election Commission invokes its plenary power vested in it under Article 324 of the Constitution of India." (emphasis added)

127. In the decision reported in JT 2000 (9) SC 529 = 2000 (8) SCC 216 (Election Commission of India Through Secretary vs. Ashok Kumar), the Supreme Court, after referring to the decisions reported in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) and N.P.Ponnuswami vs. The Returning Officer, Namakkal Constituency and others (AIR 1952 SC 64), has quoted the example cited in Mohinder Singh Gill's case in paragraph 20 and also suggested that a third category by way of an example where the intervention of the Court other than the Election Tribunal may be required. The statement of law thus made by the Supreme Court is as under in paragraphs 20 and 21: "20. .... In Mohinder Singh Gill's case, this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Court's intervention in such a case will facilitate the flow and not stop the election stream.

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. ..." (emphasis added)

In the very same decision reported in JT 2000 (9) SC 529, the Supreme Court summed up the conclusions in paragraph 32 and set out five principles to be applied, which read as under:

"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completion of proceedings in elections. 2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." (emphasis added)

128. In the decision reported in JT 2006 (12) SC 34 = 2006 (9) SCALE 147 = 2006 AIR SCW 4670(Jayrajbhai Jayantibhai Patel vs. Anilbhai Jayantibhai Patel and others), the Supreme Court while dealing with an Election matter, has held as under in paragraph 18:

"18. Having regard to it all, it is mainfest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercised the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision."

129. In a recent Constitution Bench decision of the Supreme Court reported in 2006 (7) SCC 1(Kuldip Nayar vs. Union of India), the Supreme Court has laid stress on free and fair Elections in paragraphs 330, 338 and 448, which read as under:

"330. The learned counsel representing the petitioners, while arguing on the challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats of the representative of the States in the Council of States again referred to the "basic structure" theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair election was a concept inherent in the democratic values adopted by our polity." "338. The following observations in para 198 of the judgment in Indira Nehru Gandhi (India Nehru Gandhi vs. Raj Narain 1975 Supp SCC 1) also need to be noticed as they are relevant in the context of the principle that "free and fair elections" lies at the core of democracy: (SCC p.87)

"198. This Court in the case of Kesavananda Bharati (Kesavananda Bharati vs. State of Kerala1973 (4) SCC 225) held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections." (emphasis supplied)" "448. It shows that the right to vote in "free and fair elections" is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to "free and fair elections"; that the right to vote is empty without the right to "free and fair elections". It is the concept of "free and fair elections" in terms of an electoral system which provides content and meaning to the "right to vote". In other words, "right to vote" is not (sic) an ingredient of the free and fair elections. It is essential but not the necessary ingredient."

130. In the decision reported in AIR 2004 SC 561 (Guruvayur Devaswom Managing Committee vs. C.K.Rajan), the Supreme Court while summarising the principles evolved in regard to the Public Interest Litigation, has held as under in paragraph 50(iii) and (viii):

"50.(iii): Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial."

(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr.Mahesh Madhav Gosavi and others (1987 (1) SCC 227) )."

131. In the decision reported in 1969 (3) SCC 769 (Gunwant Kaur vs. Municipal Committee, Bhatinda), the Supreme Court has held as under in paragraphs 14 and 16:

"14. ... The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. ... " "16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed questions of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit." (emphasis added)

132. The abovesaid decision of the Supreme Court reported in 1969 (3) SCC 769, was followed in a recent decision of the Supreme Court reported in 2004 (3) SCC 553 (ABL International Ltd. vs. Export Credit Guarantee Corpn. of India Ltd.), wherein the Supreme Court has held as under in paragraph 19:

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur (Gunwant Kaur vs. Municipal Committee, Bhatinda 1969 (3) SCC 769) this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact."

133. In the decision reported in 1987 (Supp) SCC 512 (Gujarat University vs. N.U.Rajguru), in paragraph 6, the Supreme Court has held as follows:

"6. .... It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. ....." (emphasis added)

134. In the decision reported in AIR 1984 SC 1912 (Inderjit Barua vs. Election Commission of India), when the Writ Petitions were filed challenging the validity of the Elections to the Assam Legislative Assembly on the ground that the electoral rolls were not revised before elections in contravention of the provisions of Section 21(2)(a) of the Representation of the People Act, 1951 and the contention was made that the challenge was to the impugned elections as a whole and not in individual election and therefore, the ban of Article 329(b) of the Constitution will not stand in the way of the Writ Petitions, the Supreme Court has held as under in paragraph 2: "2. .... But we do not think this escape route is open to the petitioners. There is in the Representation of the People Act, 1951 no concept of elections as a whole. What that Act contemplates is election from each constituency and it is that election which is liable to be challenged by filing an election petition. It may be that there is a common ground which may vitiate the elections from all the constituencies, but even so it is the election from each constituency which has to be challenged though the ground of challenge may be identical. ...."

135. In the decision reported in AIR 1977 SC 1703 (K.K.Shrivastava vs. B.K.Jain), the Supreme Court has held as under in paragraph 4:

"4. ... While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court can still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore, a writ petition will lie, is a fallacious argument. ..... There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art.226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago, is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. ..."

136. In the decision reported in AIR 1999 SC 1723 (K.Venkatachalam vs. A.Swamickan), the Supreme Court, while confirming the judgment of a Division Bench of our High Court in an election matter, where, in a writ petition, Member of Legislative Assembly was not an elector for Lalgudi Assembly Constituency and therefore, did not possess the necessary qualification to be chosen from the constituency, the Supreme Court has held as under in paragraph 27: "27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210, it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?" (emphasis added)

137. In AIR 1996 SC 1109 (S.Baldev Singh Mannn vs. S.Gurcharan Singh), in paragraph 8, the Supreme Court has held as under:

"8. It is well settled that an allegation of corrupt practises within the meaning of sub-sections (1) to (8) of Section 123 of the Act, made in election petition are regarded quasi criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. ..."

138. In the judgment reported in 1995 (4) SCC 611 (T.N.Seshan vs. Union of India), the Supreme Court has held as under in paragraph 10:

"10. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic structure of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. ..."

139. In the decision reported in 2003 (6) SCC 581 (T.K.Rangarajan vs. Govt. of T.N.), in paragraphs 5 and 10, the Supreme Court has reiterated the jurisdiction of this Court under Article 226 of the Constitution in the following words:

"5. At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. It is equally true that extraordinary powers are required to be sparingly used. The facts of the present case reveal that this was most extraordinary case, which called for interference by the High Court, as the State Government had dismissed about two lakh employees for going on strike." "10. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier, because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute." (emphasis added)

140. In the decision reported in AIR 1993 SC 892 (Janata Dal vs. H.S.Chowdhary), the Supreme Court set out the principles to be applied as regards the locus-standi of the petitioner in a Public Interest Litigation, as under in paragraph 62:

"62. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of a public delict."

141. In the decision reported in 1976 (2) SCC 82 (Rohtas Industries Ltd. vs. Staff Union), the Supreme Court has stated the expansive and extraordinary power of the High Courts under Article 226 of the Constitution in paragraph 10, which reads as under:

"10. The expansive and extraordinary power of the High Courts under Art.226 is wide as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other purpose) even one for which another remedy may exist. The amendment to Art.226 in 1963 inserting Art.226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to "the residence of such person." But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a China shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has by and large been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Art.226, although this power must be kept in severely judicious leash." (emphasis added)

142. In the decision reported in 1980 (2) SCC 593 (Gujarat Steel Tubes Ltd. vs. G.S.T.Mazdoor Sabha), the Supreme Court has described the sweeping power of Article 226 as under in paragraph 74:

"74. While the remedy under Art.226 is extraordinary and is of Anglo-Saxon vintage, it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the Court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Art.226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court's province and the remedy is appropriate to the judicial process. There is a native hue about Art.226, without being anglophilic or naglophobic in attitude. Viewed from this jurisprudential perspective, we have to be cautious both in not overstepping as if Art.226 were as large as an appeal and not failing to intervene where a grave error has crept in. Moreover, we sit here in appeal over the High Court's judgment. And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine." (emphasis added)

In the said judgment, another contention was raised as to whether a power exercisable by the Labour Tribunal under Section 11-A of the Industrial Disputes Act, could be exercised by the High Court in a writ petition arising out of the order passed by the Tribunal. The submission on that aspect was raised by the learned counsel which has been stated as under in paragraph 79: "79. Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not, under Art.226, direct re-instatement, and even if it felt that the Arbitrator had gone wrong in refusing reinstatement, the Court could only demolish the order and direct the Arbitrator to reconsider the issue. What belonged, as a discretionary power, to a Tribunal or other adjudicatory body, could not be wrested by the writ Court. To put it pilthily, regarding the relief of reinstatement the Arbitrator could but would not and the High Court would but could not. ...." (emphasis added)

While answering the said question, the Supreme Court has held as under in paragraph 144:

"144. ...... What the Tribunal may, in its discretion, do, the High Court too, under Art.226, can, if facts compel, do. ... "

143. In the decision reported in 2003 (4) SCC 399 (People's Union for Civil Liberties vs. Union of India), the Supreme Court has held as under in paragraphs 94, 96 and 97 :

"94. The trite saying that "democracy is for the people, of the people and by the people" has to be remembered forever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thoms v. Speaker, Lok Sabha (1993 (4) SCC 234) (SCC pp.236-37, para 2) quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. .... Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant of the right to vote which is the basic postulate of democracy is thus twofold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The first step is complementary to the other. ..... That goal would be accomplished in two ways. It will help the voter who is interested in seeking and receiving information about the candidate to form an opinion according to his or her conscience and best of judgment and secondly, it will facilitate the press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter - whether he acquires information directly by keeping track of disclosures or through the press and other channels of communication - will be able to fulfil his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values. ..... " "96. The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly Debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326 which enjoins that the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty-one years (Now 18 years) of age, and is not otherwise disqualified under the Constitution or law on the ground of non-residence, unsoundness of mind, crime, corrupt or illegal practice - shall be entitled to be registered as voter at such election. ...... "

"97. In Jyoti Basu v. Debi Ghosal (1982 (1) SCC 691 : 1982 (3) SCR 318) this Court again pointed out in no uncertain terms that: (SCC p.696, para 8)

"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right."

With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between the conferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen's freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate. The issues that arose in Ponnuswami case (AIR 1952 SC 64 : 1952 SCR 218) and various cases cited by the learned Solicitor-General fall broadly within the realm of procedural or remedial aspects of challenging the election or the nomination of a candidate. None of these decisions, in my view, go counter to the proposition accepted by us that the fundamental right of freedom of expression sets in when a voter actually casts his vote. I, therefore, find no merit in the submission made by the learned Solicitor-General that these writ petitions have to be referred to a larger Bench in view of the apparent conflict. As already stated, the factual matrix and legal issues involved in those cases were different and the view, we are taking, does not go counter to the actual ratio of the said decisions rendered by the eminent Judges of this Court." (emphasis added)

144. A reference to the above decisions discloses that in a democratic set up, holding of Elections in a free and fair manner assumes greater importance and that is the responsibility of the constitutional functionary, namely Election Commission to ensure that the Elections are held in such a manner that an elector gains absolute confidence in his mind that he can cast his vote out of free will and without any interruption whatsoever. The Courts have also emphasised that in that area, the Election Commission has been invested with large powers to cover unforeseen circumstances solely with a view to ensure holding of a free and fair poll. While highlighting the importance of free and fair poll, the Supreme Court has also cautioned that a Returned candidate who had resorted to foul methods to come out successful in the Election, should not be allowed to reap the benefit which he really does not deserve. The Supreme Court has also made it clear that the right to vote which was neither a fundamental right nor a common law right, was purely a statutory right, which had been elevated to the position of a constitutional right. In fact, while deliberating on this, the Supreme Court in the decision reported in 2003 (4) SCC 399 (cited supra) at page 460 in para 97, made it clear as follows:

97. " ... Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights, such as right to secure information about the candidate which are conducive to the freedom."

145. Thus, the Supreme Court while highlighting the fine distinction between the right to vote as a constitutional right and the stage of expression of such a right in a free and fair manner would amount to a right guaranteed under Article 19(1)(a) of the Constitution, has thus made it clear that such a right of a voter while casting his vote assumes greater significance. As such, casting of vote decides the fate of a country, inasmuch as the ruling of it entrusted in the hands of a set of persons in whose hands, in turn the basic feature of the Constitution, namely protection of the democratic set up is ultimately invested. Therefore, the Supreme Court has made it clear that even though the right to vote, though ensures under the provisions of the Representation of the People Act, having regard to the fact that such a creation is pursuant to the constitutional mandate as contained in Article 326 of the Constitution, has been elevated to the position of a constitutional right and not merely a statutory right in stricto-sensu.

146. The above decision (2003 (4) SCC 399) has made a distinction between a right to vote and the final act of expressing such a right by means of casting a ballot. While a citizen's right to vote has been described as a constitutional right now, it was originally recognised as a mere statutory right. The Supreme Court has now clarified that once a citizen acquires the said constitutional right, the subsequent act of expressing the said right in an Election assumes the character of a fundamental right and thereby attracting Article 19(1)(a) of the Constitution. Therefore, if there is any hurdle faced by a citizen in acquiring his voting right, he will only have the protection and remedies that are available in establishing the said constitutional right. When once such a voting right is acquired, thereafter, the casting of the said voting right having been recognised as a fundamental right, should have all the protection and safeguards that are available as provided under Chapter-III of the Constitution. Thereafter, infringement of such a right will certainly call for the intervention of this Court in exercise of its extraordinary jurisdiction under the Constitution.

147. Further, in the latest decision of the Supreme Court reported in 2006 (7) SCC 1 (cited supra), the Supreme Court reiterated the principles set out in 1975 Supp. SCC 1 (Indira Nehru Gandhi vs. Raj Narain), wherein, the necessity of a free and fair election has been emphasised in the following words:

" ... Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass nation. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections." (emphasis added)

148. While on the one hand, the Supreme Court has highlighted the values of democracy and holding of free and fair elections to achieve the targeted goal, it has also been reminding a note of caution every now and then to the Courts, in particular, the exercise of Writ jurisdiction under Article 226 of the Constitution to be more circumscribe in its exercise. While highlighting such a cautious note, the Supreme Court has also made it clear that the Court should not hesitate to step in wherever and whenever injustice is meted out, that in such a situation, the Writ Court has got powers even to determine the questions of fact when they are disputed, that existence of alternative remedy by itself need not deter the Court to exercise its extraordinary jurisdiction or to put in the words of the Supreme Court, if the monstrosity of the situation warrants such interference.

149. In fact, in the decision reported in 2003 (6) SCC 581 (T.K.Rangarajan vs. Govt. of T.N), the Supreme Court has stated in paragraph 5 that "At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel." In the very same decision, the Supreme Court has also stated about the impracticability in working out the alternative remedy by stating in paragraph 10 that, " .. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. ... "

150. In one of the earlier decisions of the Supreme Court reported in 1976 (2) SCC 82 (cited supra), the Supreme Court has stated in paragraph 10 that, " .. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has by and large been the people's sentinel of the qui vive and to cut back on or liquidate that power may cast a peril of human rights ..."

151. Again in the decision reported in 1980 (2) SCC 593 (cited supra), the Supreme Court has stated in paragraph 74 that " ... Article 226 is a sparing surgery but the lancet operates where injustice suppurates. .... judicial daring is not daunted where glaring injustice demands even affirmative action. .... And an appellate power interferes not when the order appealed is not right, but only when it is clearly wrong. The difference is real though fine."

152. A detailed analysis of the above referred to decisions of the Supreme Court in particular, the Election cases, shows that the Supreme Court has repeatedly emphasised that the Courts should not interfere in the process of Elections in order to ensure that such election process is completed and concluded, right from the date of its commencement till the date of its conclusion. The Supreme Court has also stated that such orders which would enable smooth completion and furtherance of that Election process is always permissible. What has been repeatedly emphasised is that there should not be an interference in the Election process at the instance of any party who may approach the Court in an outwardly innocuous fashion with a view to stultify the Election process, as in the opinion of the Supreme Court, that would interfere with the constitutional mandate of holding of the Elections, where the will of the people is ultimately ascertained, which results in the Election of the representatives of the people who fill the role of law makers and custodian of the Government.

153. In the above said ratio-decidendi of the Supreme Court as could be culled out from the various decisions, right from Ponnuswami's case (AIR 1952 SC 64) ending with Kuldip Nayar's case (2006 (7) SCC 1), when the case on hand is considered, it is to be examined whether this Court should grant the declaration as prayed for by the petitioners to hold that the whole of the Elections held for all the 155 wards is to be declared as null and void. If such a declaration were to be granted, de-hors the alternative remedy of an Election Petition provided under Section 54-A of the Chennai City Municipal Corporation Act read along with Article 243-ZG(b) of the Constitution, it will have to be seen whether such a monstrous or extremely extraordinary situation exists, in order to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution.

154. From a conspectus reading of the various decisions placed before us, I find that there were exceptional cases where the Supreme Court affirmed the decision of the High Courts where in Election matters, the Writ Petitions under Article 226 of the Constitution were entertained and the results of the Elections were set aside for some stated reasons. In the decision reported in AIR 1987 Madras 60 (A.Swamickan vs. K.Venkatachalam), a Division Bench of this Court declared that Thiru.K.Venkatachalam who got elected as a Member of Legislative Assembly, was not qualified to sit as a Member of the Legislative Assembly in Tamil Nadu, as he did not possess the basic qualifications prescribed in Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of People Act, 1951. The Division Bench held that the said Thiru.Venkatachalam was not an Elector of the concerned constituency and therefore, did not possess the necessary qualification to be chosen from that constituency and such a declaration and the ultimate decision was rendered by this Court in exercise of its jurisdiction under Article 226 of the Constitution, though a learned single Judge in that case dismissed the Writ Petition on the ground that it was not maintainable under Article 226 of the Constitution of India, in view of the constitutional bar contained in Clause (b) of Article 329 of the Constitution. The Supreme Court, in the decision reported in AIR 1999 SC 1723 (K.Venkatachalam vs. Swamickan) affirmed the said decision of the Division Bench of this Court by holding that Article 226 of the Constitution of India is couched in widest possible term and unless there is a clear bar to the jurisdiction of the High Court, its power under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when re-course cannot be had to the provisions of the Act for the appropriate relief. The Supreme Court also held that in the circumstances like the one involved in that case, the bar of Article 329(b) of the Constitution would not come into play.

155. In one other Election matter, a Division Bench of the Punjab and Haryana High Court in the decision reported in AIR 1994 Punjab and Haryana 185 (Surinder Kaur vs. State of Punjab),declined to interfere with the declaration of result of the Election in spite of an earlier order of interim stay granted by the High Court. On appeal, the Supreme Court in the decision reported in AIR 1996 SC 1507 (Surinder Kaur vs. State of Punjab), held that though it was denied that the appellant in that case had submitted her nomination papers for contest as a Sarpanch, it would be difficult to believe the statement of the respondents that she had not filed the nomination papers. It was stated that the appellant had taken all necessary steps to file the nomination papers well within time, that she was a sitting Sarpanch for over 15 years and under those circumstances, one would legitimately expect that she would have had an intention to contest the election and having secured necessary papers, in normal course, she would have filed the nomination papers but for some supervening event. The Supreme Court also took note of the stand of the appellant in that case that the seventh respondent forcibly took the nomination papers from the appellant and torn them off since her husband was already under police custody at the relevant time. The Supreme Court therefore held that the appellant was prevented from filing the nomination papers and also taking note of the interim stay granted by the High Court and irrespective of the Rule providing for challenge to the ultimate result of the Election before the Tribunal, the Supreme Court held that the unlawful prevention of the appellant from contesting Election was in violation of law and therefore, the election of the seventh respondent in that case as Sarpanch was set aside and the authorities were directed to conduct the election according to the Rules within four weeks from the date of the receipt of the order.

156. To sum up the legal position, it can be stated as under:

(i) Democracy contemplates that Elections should be free and fair, so that voters may be in a position to vote for the candidate of their choice. Free and fair Elections are the very foundation of democratic institutions. The Elections should not only be fairly and properly held, but should also seem to be so held to inspire confidence in the minds of the Electors that everything was above board. To ensure free and fair Elections, the Constitution vests comprehensive responsibility in the Election Commission. The Election Commission, as part of fairness in Elections, has an obligation to see that no wrong doer candidate benefits by his own wrong. (ii) The Election Commission as a creature of the Constitution, has been invested with residuary power to be exercised in the infinite variety of situations that may emerge from time to time in the large Democracy of ours, as every contingency cannot be foreseen or anticipated with precision.

(iii) To meet such contingencies, the Election Commission has been invested with plenary powers. During the process of Elections, in order to maintain purity in the process, the Election Commission should ensure and see that the Returned Candidate is deprived of the success secured by him, which success he secured by resorting to means and methods falling foul of the law of Elections. Each case has to be considered on its own facts, depending upon the authority that exercises the power and the indelible effects which generate in the operation of law or affects the individual or society. An administrative action can be struck down, if the Court is satisfied that there is abuse or misuse of power or that such action of the authority was so absurd that no reasonable person could have arrived at on the given material. (iv) In a Public Interest Litigation, whenever injustice is meted out to a large number of people, the Court should not hesitate to step in.

(v) In a Writ Petition under Article 226 of the Constitution, even questions of fact of complex nature can be determined.

(vi) Merely because one of the parties to the litigation raised a dispute in regard to the facts of the case, the Court dealing with the petition under Article 226 of the Constitution is not always bound to relegate the parties to a different forum.

(vii) If exceptional and extraordinary circumstances exist, the Court can by-pass alternative remedies in a Writ Petition under Article 226 of the Constitution.

(viii) If the monstrosity of the situation or other exceptional circumstances cry for timely jurisdictional interdict or mandate, the Court should not hesitate to exercise its extraordinary power under Article 226 of the Constitution.

(ix) The mentor of law is justice and a potent drug should be judicially administered.

(x) Judicial daring is not daunted where glaring injustice demands even affirmative action.

(xi) The trite saying that, "Democracy is for the people, of the people and by the people" has to be remembered for ever.

(xii) The right to vote if not a fundamental right, is certainly a constitutional right.

(xiii) Casting of vote in favour of one or the other candidate tantamounts to expression of voter's opinion and the exercise of the said voting right marks the accomplishment of 'freedom of expression' of the voter, attracting Article 19(1)(a) of the Constitution.

(xiv) Democracy can indeed function only upon the faith that Elections are free and fair and not rigged and manipulated.

(xv) If the facts can be found to be not a controverted one and if the denial would have created graver injustice, according to the Supreme Court, the "Doctrine of Extrapolation" would come into play. (i.e. to arrive at conclusions or results by hypothesising from known facts or observations or to speculate as to consequences on the basis of known facts or observations).

157. When I analyse the various facts set out in paragraph 104 of my order with the above said legal position in mind, at the outset, if I refer to the statement made by the second respondent-DGP in one of his instructions, as contained in Memorandum dated 25.9.2006, wherein it is stated that, "While booth-capturing of the kind witnessed in some of the northern states is not a significant phenomenon in the State, there have been a few incidents of interference with the Polling process by theft or causing damage of ballot material", which is also the true reflection of what was happening in this State. The question is whether the present scenario that existed on 13.10.2006 can be equated to what had been quoted by the second respondent-DGP as a few incidents of interference with the Polling process, has this time matched with what was happening in the Northern State or it was totally an unprecedented and incomparable one when compared with the mishappenings which happened in the earlier Elections. What was stated by the second respondent-DGP as a few incidents of interference with the Polling process by way of causing damage of ballot material, may be of some sporadic incident of one or two cases, which might have been identified and controlled by the officials working under the first respondent-Election Commissioner himself with the help of the Police officials, who also work under the control of the first respondent at the time of holding of Elections. Similarly, the statement made therein by the second respondent-DGP, namely that booth-capturing of the kind witnessed in some of the northern states is not a significant phenomenon in the State, is obviously to the peaceful manner in which Elections used to take place either for the Local Bodies or in the holding of Elections for electing a Member of Parliament or Legislative Assembly.

158. With that level of poll violence, as comparable and as stated by the second respondent-DGP in his instructions, in mind, when the incident that happened and the details of which as stated in paragraph 104 of this order are examined, it is a matter of record that a bundle of ballot papers pertaining to different booths in different wards which were supposed to be in the custody of the respective Polling officials, were placed before the Court. As the number of ballot papers contained in such bundles are so numerous that it will not be possible to list them out, as the mere statement to the effect that such a large amount of ballot papers had come to the streets, is not disputed even by the first respondent-Election Commission at whose behest and control the Election was held on 13.10.2006.

159. That apart, as highlighted by me, the media reports also widely published with photographs, disclosing the strewn ballot papers on the road, and also reporting about such mishandling of ballot papers in numerous booths in the 155 wards. As rightly contended by Mr.N.Jothi and Mr.N.G.R.Prasad, learned counsel appearing for some of the Writ Petitioners, I am of the view that while taking stock of the entirety of the scenario which prevailed on the date of Election, and having regard to the decisions of the Supreme Court where the Supreme Court itself has highlighted and reposed high amount of importance to the media reports vis-a-vis the right of a common voter in understanding the details of a candidate prior to the Elections, I am of the view that such media reports in the present situation can also be taken due note of for arriving at my conclusions. With that view, I state that some of the media reports stated that there was "total chaos that prevailed in almost majority of the booths in 155 wards of the Chennai City Corporation", that "dhadhas were ruling the booths and one of the media reports captioned the Election scenario as "Bedlam in Chennai" (i.e. pandemonium, clamour, chaos).

160. Even by ignoring the allegations of the petitioners that the ballot papers were strewn around everywhere, was at the instance of the fifth respondent, namely the DMK party, the fact remains and it is also not disputed by respondents 1 to 4 that large amount of ballot papers had come out of the respective polling booths. It is also not in dispute that the first respondent-State Election Commission was not in a position to give any details as to the total number of ballot papers which were found to be missing with particular reference to any booth(s) relating to the specific wards, in order to state that beyond such booth(s) or ward(s), in no other ward(s) and the related booth(s), such missing of ballot papers was officially noted. Even by ignoring the allegation of the writ petitioners that the ballot papers were mishandled by the fifth respondent-Political Party, it will have to be stated that the ballot papers which were expected to be kept in tact in the booths of the various wards where the Election was scheduled to be held, were found available on the roads or for that matter, in the hands of several other individuals with reference to which there is no specific averment or statement either by the first respondent-Election Commission or any of the polling officials except a statement made by the Commissioner of Corporation of Chennai and in whose statement also, there were no details as to the total number of ballot papers which were found missing, which was stated to have been replenished. Therefore, I am unable to go by the said statement of the Commissioner of the Corporation of Chennai who happened to be the District Election Officer while considering the large amount of ballot papers which were placed before this Court to demonstrate that such ballot papers were collected and gathered from the roads and the individuals who were found in possession, when a chaotic situation was prevailing near different booths and where vandalism was stated to have been let loose irrespective of the person at whose instance such mishappenings took place.

161. When I analyse the issue from a different angle, namely from the standpoint of the third and fourth respondents, namely Commissioner of Police and the Additional Commissioner of Police, who were assisting the first respondent-State Election Commission to regulate the whole Election process on 13.10.2006, as stated in detail in paragraph 104 of my order, as there were as many as more than 90 specific complaints received by them either directly or through the first respondent-State Election Commission, all of them related to poll related violence. Even amongst them, such complaints mainly related to booth capturing and bogus voting. A reading of the counter affidavits filed by the Commissioner of Police which was also adopted by the DGP is nothing but a simple statement to the effect that as and when such complaints were received, necessary action was taken. Beyond the said statement made by the third respondent-Commissioner of Police, there was no detail forthcoming to state about the correctness of the complaints and the nature of action taken, for us to take at least a prima-facie view as to the truth or otherwise of the allegations of 'en masse' booth rigging or bogus voting. In my considered opinion, when such a large scale booth rigging and bogus voting were admittedly reported to the third respondent-Commissioner of Police by the first respondent-Election Commission itself, when I tried to find out whether that can be construed either as a sporadic incident or a large scale indulgence of booth capturing, I find force in the submission of the learned counsel for the petitioners that such mishandling of the ballot papers and the availability of such ballot papers outside the polling booths, cannot be simply treated as a sporadic incident or mishandling of ballot papers, but would only amount to total lack of control in organising the Polling Stations for the voters to cast their vote in a free and fair election and as a sequel to it, that really infringed upon the fundamental right of freedom of expression of casting one's vote.

162. A sporadic incident of bogus voting will be the one where some individuals attempt to cast the votes of others and they happen to be caught in that process while indulging in bogus voting. That is not the case in the present Election. Annexure to the counter affidavit of the third respondent-Commissioner of Police dated 15.10.2006 when compared to her own counter affidavit dated 9.11.2006 in W.P.No.39400 of 2006, discloses that her statement is far from truth and no reliance can be placed upon the statement of the third respondent-Commissioner of Police. In the counter affidavit dated 15.10.2006 in paragraph 5 in W.P.No.39400 of 2006, she has made a categoric statement that out of 3295 booths, there have been no complaints registered with the police for booth capturing by any of the Polling Officers and in respect of 17 booths alone, the irregularities reported to the State Election Commissioner resulted in orders for re-poll. In paragraph 7 of the same counter affidavit, the Commissioner of Police would state that the media reporting was not correct and that everything was blown out of proportion. However, in the counter affidavit dated 9.11.2006 filed in W.P.No.39438 of 2006, the third respondent-Commissioner of Police has filed an Annexure referring to 8 of the complaints received, which were all relating to unauthorised entry of persons other than the voters causing damages to booth, ballot papers, boxes and polling materials. The total number of booths referred to in the said Annexure related to atleast 8 wards and in respect of one ward alone, the specific complaint was that 19 booths were captured and bogus voting was recorded. In the very same Annexure, in respect of the said one ward, namely Ward No.130, not even in respect of one booth, re-polling was ordered. It is not the case of the third respondent-Commissioner of Police that the complaint in respect of the said Ward No.130, consisting of 19 booths, with reference to which booth capturing and bogus voting were complained of, was a false one or that the complainant who is none other than the Assistant Returning Officer, namely one Thiru.Nandakumar made the complaint with any ulterior motive. I have only pointed out one such instance to show that the allegation of the petitioners that the third and fourth respondents, namely the Commissioner of Police and the Additional Commissioner of Police, Greater Chennai, remained as mute spectators, was not without any basis.

163. In fact, a close reading of the counter affidavits of either the DGP or the Commissioner of Police or the Additional Commissioner of Police does not infuse any confidence in the mind of this Court to believe that the allegation of bogus voting was only a sporadic incident and not in a mass scale. If really the bogus voting was a sporadic one, it is not known why the third respondent-Commissioner of Police and her subordinates had to apprehend 1216 persons and arrest alone was not less than 129 persons. I am constrained to state that the third respondent-Commissioner of Police, in the counter affidavits, instead of coming out with the real state of affairs that prevailed on 13.10.2006, has only attempted not to disclose the real features, but tried to portray the situation as though nothing untoward happened except mild disturbances here and there. In this context, the report of the media about the inability of a Police Officer of a rank of not less than DGP, by name, Thiru.S.Ramani who was stated to have gone to the polling booth located at Rani Meiammai School in Mylapore at 9.00 a.m. when he was informed by the Police in mufti that the polling booth was closed due to violence and that he need not even come in the evening as the booth had been closed once and for all, assumes importance. If that was the situation faced by an Officer of the level of Director General of Police for casting his vote, I wonder what would have been the plight of a common citizen who was totally dependent on the security and safeguard of the respondents 2 to 4 for exercising his fundamental right of freedom of expression of casting his vote.

164. In my considered opinion, even assuming that such a large scale violence as complained of before the third respondent-Commissioner of Police as regards booth capturing and bogus voting, had been reported, it is not known as to why the third respondent failed to take necessary action and remedy the situation, and thereby enable the voters to cast their vote by setting right any untoward incident that had taken place. If really such reported complaints were not to such an extent, it could have been corrected by taking appropriate corrective measures on the spot by posting necessary Police personnel. However much I have searched for any such statement in the counter affidavit of the third respondent or for that matter, the second respondent-DGP, I was not able to gain any such impression that the Police authorities had come up to the expectation of the common man, the voter, in order to enable him to cast his vote peacefully and exercise his Franchise in a free and fair election. Though the counter affidavit of the third respondent dated 9.11.2006 filed in W.P.No.39438 of 2006 gives the details of the complaints in the Annexure, there was absolutely no averment in the said counter affidavit as to what were the steps taken to remedy the situation. Only in respect of one complaint made by one of the candidates, namely Tmt.Devi, the counter affidavit discloses that one Thiru.Babu, MLA of the fifth respondent-Political Party, was arrested, who was subsequently released on bail in connection with Crime No.778 of 2006 registered in G.5 Secretariat Colony Police Station under Sections 147, 323, 341, 352 and 294(b) IPC. Apparently, the third respondent seems to have been attempting to shield every kind of untoward incident that had taken place on 13.10.2006 in various wards where polling was scheduled to be held on that day for reasons best known to her. If really the third respondent had acted in a true spirit expected of her as a Commissioner of Police, the third respondent would have been in a position to explain to this Court the truth or otherwise of each one of the 94 complaints and the further steps taken as regards those complaints at the relevant point of time, instead of stating that no complaint was received as regards booth capturing and bogus voting. In fact, even as regards the complaints which were reported to have been forwarded by the first respondent-Election Commission, as per the Annexure filed along with the counter affidavit dated 15.10.2006 in W.P.No.39400 of 2006, which was not less than 30 in number, in which majority of the complaints related to bogus voting and booth capturing, the first respondent-State Election Commission has not reported as to what was the outcome of transmission of such complaints to the third respondent-Commissioner of Police. Neither the counter affidavit of the first respondent or that of the third respondent discloses as to the fate of those complaints which related to booth capturing and bogus voting. Therefore, I am unable to rely on any of the statements made by the second, third and fourth respondents, namely DGP, Commissioner of Police, Greater Chennai and Additional Commissioner of Police, Greater Chennai, in stating that the incidents were only sporadic and the allegation of booth capturing and bogus voting never happened. I am constrained to state that such a stand taken by those Police authorities was far from truth and did not reveal the correct state of affairs that prevailed on 13.10.2006.

165. As far as the first respondent-Election Commission is concerned, it is seen that the State Election Commission is a constitutional authority and his appointment is governed by Article 243-K of the Constitution. In fact, the proviso to Article 243-K(2) states that the State Election Commissioner shall not to be removed from his office except in like manner and on the like ground as a Judge of a High Court. The first respondent-Election Commission has been invested with the powers of superintendence, direction and control of the preparation of electoral rolls and the conduct of all Elections, under Article 243-K read with 243-ZA of the Constitution. When such enormous powers have been vested with the first respondent-Election Commission, it is unfortunate that the first respondent did not raise his little finger when such an extraordinary situation was prevailing on the date of Election, except stating that numerous complaints were received and such complaints were simply transmitted to the Commissioner of Police. A perusal of the counter affidavits of the first respondent disclose that he was not even bothered to know as to the outcome of the transmission of various complaints, which were all related only to bogus voting and booth capturing. If such were the complaints and the ballot papers had been stealthily removed from polling stations, it is not known as to how the first respondent-Election Commission can come forward with a simple denial of the allegations of the petitioners and state that such incidents have been blown out of proportion. Unfortunately, even as regards those complaints which pertain to booth capturing and bogus voting and removal of ballot papers, the first respondent was not able to come forward with a specific statement with even the minimum details as to what was the steps taken by him either to control such incident of booth capturing and restore normalcy of the polling booths in order to ensure that at some point of time in the day, the voters were able to cast their vote without any fear from any quarters. On the other hand, to a specific question put to learned Senior Counsel for the first respondent-Election Commission as to after the numerous complaints which were received by him, whether he made an assessment of the gravity of the situation either at once or at any point of time thereafter, the reply was that no such assessment was ever made by the first respondent either on the date of Election or at any subsequent point of time. The statement now made before the Court by the learned Senior Counsel on behalf of the first respondent-State Election Commission, contradicts with the statement made by the first respondent in the counter affidavit that he was in constant touch with the Police authorities throughout the day and was monitoring the situation not only of the City, but also in respect of the whole State with which he was concerned. In the light of the present statement made by the learned Senior Counsel for the first respondent that the first respondent did not attend to the situation in person, the stand in the counter affidavit has no meaning. According to the learned Senior Counsel, the sole aim of the first respondent was to go ahead with the Election as scheduled irrespective of the turmoil or whatever was the nature of the situation that prevailed in different Polling Stations. I am afraid that such a stand of the first respondent with whom a greater responsibility was reposed in the conduct of Election can be accepted without any reservation. To say the least, the stand of the first respondent in such a fashion can only be construed as a highly irresponsible one and was not in the interest of protecting the Democracy, instead, it can only be stated as an indifferent attitude displayed without realising the responsibility reposed on him.

166. In fact, in the decision reported in AIR 1978 SC 851 (cited supra), the Supreme Court has made it clear in paragraph 91(2)(a) and (b) that the Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the elections in the Election Commission, that this responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances and the only limitation in the exercise of such powers was that his action should be in conformity with the law made by the Parliament or any State Legislature with regard to the elections and that there should be fair play in his actions. Even while setting forth one of the limitations, namely fair play, the Supreme Court made a word of caution by stating that fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong.

167. When I examine the conduct of the first respondent-Election Commission in the present situation when it conducted Elections on 13.10.2006, I am unable to acknowledge any responsibility in his actions, nor did he exercise his powers and functions befitting the circumstances that warranted at the relevant point of time. It was unfortunate that the State Election Commissioner is stated to have suffered some set back in his health on that date, namely 13.10.2006; but when onerous constitutional responsibility has been imposed on him, such reasons can never be an excuse to gloss over the situation. If really the State Election Commissioner's health was such that he was not in a position to immediately attend to the crisis that prevailed at the relevant point of time, he ought to have made a thorough study, at least immediately thereafter and should have taken all remedial steps in order to ensure that a free and fair Election did take place and that the exercise of Franchise by the voters could be made in a calm and clean atmosphere without providing scope for allegation of vandalism or rigging of booths. I am constrained to state that though under the provisions of the Chennai City Municipal Corporation Act and the Rules framed thereunder, the first respondent-State Election Commission is fully empowered to stop the Poll immediately after such wholesale booth rigging and bogus voting were brought to his notice, he thoroughly failed to come up to the expectation and displayed total indifference in his attitude for the reasons best known to him and thereby failed to ensure a free and fair Poll. On the other hand, when an opportunity was extended to the first respondent at the time when a Writ Petition was entertained by this Court on 13.10.2006 itself, the first respondent, instead of taking a genuine effort, has come forward with a statement in his common counter affidavit dated 29.10.2006 in W.P.Nos.39457 of 2006, etc., by stating that in obedience to the orders of this Court and as suggested by this Court, the Returning Officer, namely the Commissioner of Corporation of Chennai recommended for re-polling in 27 booths and on his recommendation, the first respondent ordered for re-poll in 27 polling booths. In the first place, the statement of the first respondent was not a true statement in the sense that this Court never ordered on 13.10.2006 directing the first respondent-Election Commission to conduct any re-poll, nor was there any suggestion to the first respondent to that effect. Secondly, the said statement only shows that even thereafter, the first respondent was not inclined to make a first-hand study about the situation that prevailed on that day, inasmuch as irrespective of large number of ballot papers having been placed before the Court, the first respondent appeared to have made a casual approach to the problem, as even according to the first respondent, re-polling in 27 booths was ordered by it only based on the recommendations of the Commissioner of Corporation of Chennai in his capacity as a Returning Officer. Further, in paragraph 14 of the counter affidavit of the first respondent dated 15.10.2006 in W.P.No.39400 of 2006, the first respondent would admit receipt of complaints in respect of 19 wards, namely Ward Nos.8,11, 20, 27, 54, 59, 82, 84, 91, 95, 106, 110, 117, 120, 122, 124, 125, 126 and 130, and re-polling ordered as on that day related to Ward Nos.23, 35, 45, 48 and 149. None of the 17 booths in which re-polling was ordered, related to any of 19 wards with reference to which admittedly the first respondent received the complaints. Till the last date of the hearing, no information was forthcoming from the first respondent as to why no re-polling was ordered in any of the booths in those 19 wards. There is not even a statement from the first respondent in the form of a counter affidavit that any of the complaints relating to those 19 wards were probed into either by the first respondent or by the other respondents, namely 2 to 4 in order to state that no untoward incident much less in the form of booth capturing or bogus voting had taken place in those 19 wards. Therefore, having regard to the status of the State Election Commissioner and the enormous powers vested in him both constitutionally and statutorily, when I am able to state that there was total failure in the discharge of his functions expected of him as a State Election Commissioner in handling the extreme state of affairs that prevailed on 13.10.2006 which related to booth capturing and bogus voting, I am forced to conclude that the first respondent miserably failed in the discharge of his functions as a State Election Commissioner. I am not in a position to accept the simple statement of the first respondent that except a mild tremor, the situation that prevailed on 13.10.2006 in many of the 155 wards, as complained of either by the candidates or by the respective Polling Officers alleging booth capturing and bogus voting, was not true and that the situation was very calm as claimed by him. I am also unable to accept the stand of the first respondent that the petitioners and others who preferred complaints before him including the media reports, was only exaggerated version of miniscule happenings and therefore, the aggrieved party should be directed to work out their remedies by way of Election Petition.

168. In my considered opinion, every one of the incidents and details referred to in paragraph 104 of this order, and the failure of the State Election Commissioner to react to the situation in the manner expected of him, was really an extreme and extraordinary situation which calls for an extraordinary remedy. In the light of the unprecedented situation that prevailed on 13.10.2006, which was also to a very large extent admitted by respondents 1, 3 and 4, namely booth rigging and bogus voting, which were also supported by the other materials including the media reports, it will have to be held that there was no free and fair poll on 13.10.2006. Further, when the State Election Commission, the first respondent as well as respondents 3 and 4 have not even attempted to remedy the situation for providing a free and fair poll for the voters to cast their vote in an uninhibited manner, it will have to be held that the said situation calls for an extraordinary remedy and cannot be equated to a normal case of an election dispute which can be allowed to be worked out in the form of an Election Petition.

169. Having regard to the magnitude of the violation in the conduct of the Elections to the majority of the Wards, namely atleast 99 Wards out of 155 Wards, it will be wholly inappropriate if it were to be held that the aggrieved voters or the candidates over the outcome of the Election results, should be directed to work out the remedy before the Election Tribunal. This is not a single case of any aggrieved candidate who lost in the Election, who wishes to challenge the Election results in the form of Writ Petition. The grievance of the petitioners is that the wholesale violence perpetrated in the Polling process was so grave that the concept of purity in Elections, or otherwise called as "free and fair Poll" was seriously impinged and thereby, the common voter was not in a position to exercise his Franchise in a calm atmosphere where he could have exercised his voting right for electing a candidate of his choice. Therefore, the case on hand cannot be equated to the ordinary case of election dispute and find out whether any such issue can be thrashed out in the Writ Petition or the party should be directed to work out the remedy before the Election Tribunal.

170. Having regard to the fact situation culled out from the various materials on record and the affidavits and the counter affidavits filed by the parties as specifically noted in paragraph 104 of this order, I am convinced that this case stands on a different footing, where this Court will have to necessarily invoke the extraordinary jurisdiction conferred upon it under Article 226 of the Constitution in order to ensure that "free and fair Poll" is held and thereby, the purity in Elections as enshrined in the Constitution is ensured to the common voters.

171. It is true that the Supreme Court has held that there is no concept of Elections as a whole or plurality of returns of elections, as held in AIR 1984 SC 1912 (Inderjit Barua vs. Election Commission of India) and AIR 1977 SC 1703 (K.K.Shrivastava vs. B.K.Jain). But on a detailed reading of the above referred to judgments, it can be seen that in the judgment reported in AIR 1984 SC 1912, the complaint related to non-revision of electoral rolls in contravention of Section 21(2)(a) of the Representation of the People Act (43 of 1950) and in the decision reported in AIR 1977 SC 1703, the Writ Petition came to be filed after the period of limitation in filing the Election Petition by two voters alone, one of whom was a defeated candidate irrespective of the fact that an Election Petition had already been filed before the Tribunal constituted under the Rules. The Supreme Court in the above stated background, stated that merely because the challenge related to plurality of the Elections, the same cannot be made in a Writ Petition under Article 226 of the Constitution. Those judgments can never be applied to the facts involved in the present case.

172. In fact, in my humble opinion, the statement of law made by the Supreme Court in the decision reported in 2000 (8) SCC 216 = JT 2000 (9) SC 529) (Election Commission of India Through Secretary vs. Ashok Kumar), wherein the Supreme Court, while elaborating the examples stated in Mohinder Singh Gill's case (AIR 1978 SC 851), where interference came to be made, namely when the Returning Officer accepted only one nomination or only those which come from one party as distinguished from other parties or independents, where the Court's intervention would facilitate the flow and not stop the election stream, went on to suggest that in some other case, during the process of election, something may have happened which would provide a good ground for the election being set aside, such as the one where when purity of election process has to be preserved, the Returned candidate secured his case by resorting to means and methods falling foul of the law of elections, which could be one other ground, where judicial assistance can be sought for. In the same line of reasonings, I am of the view that in the present situation, I find that the State Election Commissioner has miserably failed in the performance of his constitutionary functions in the manner expected of him, and the Police authorities have equally failed in the performance of their statutory functions in providing a free and fair poll for the common voters to cast their vote, which has now been recognised as a fundamental right of freedom of expression, in the decision reported in 2003 (4) SCC 399 (cited supra). The Supreme Court in the said judgment (2003 (4) SCC 399), has held in paragraph 97 that the casting of vote in favour of one or other candidates tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter which attracts Article 19(1)(a) of the Constitution.

173. I would therefore be well justified in holding that the failure of the first respondent-Election Commission and for that matter, respondents 2 to 4, namely DGP, Commissioner of Police and Additional Commissioner of Police, in not ensuring the holding of proper Elections on 13.10.2006, would vitiate the Elections held in respect of 99 Wards, namely 2, 4, 6, 8, 9, 11, 12, 14, 18, 19, 20, 22, 23, 26, 27, 31, 35, 36, 37, 40, 42, 45, 48, 49, 52, 53, 54, 55, 56, 57, 59, 63, 64, 65, 66, 67, 68, 69, 70, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 86, 88, 89, 91, 92, 95, 97, 102, 103, 104, 105, 106, 109, 110, 111, 113, 117, 119, 120, 122, 123, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 137, 138, 139, 140, 141, 142, 143, 144, 145, 147, 149, 150, 151, 152, 153, 154 and 155 and consequently, the outcome of such Elections also gets vitiated.

174. At the time when interim order was passed on 18.10.2006, the first respondent-Election Commission was permitted to count the votes of all the Wards and while issuing appropriate certificate with regard to the declaration of the successful Ward Councillors, to make an endorsement in the certificate that such declaration would be subject to the decision in these Writ Petitions. The first respondent-Election Commission is stated to have issued such certificate while declaring the names of the successful candidates.

175. Having regard to my above conclusions and even after filing of the Writ Petitions, where an opportunity was extended to the first respondent-State Election Commission, which displayed total indifferent attitude, I am of the view that no purpose will be served by remitting the matter back to the first respondent-State Election Commission.

176. In the light of my conclusions as above, since the Elections held to the 99 Wards has been found to be vitiated, the first respondent-Election Commission is directed to re-call the certificates issued to such of those persons in the 99 Wards pursuant to the interim order of this Court dated 18.10.2006. Consequently, the first respondent-Election Commission is directed to hold the Elections afresh to all the above 99 Wards by strictly adhering to the norms and by providing adequate Police protection in order to enable the voters to cast their vote freely without any interference from any quarters to enable them to cast their vote in a free and fair election.

177. The Writ Petitions stand allowed to the extent indicated above, with costs. The Miscellaneous Petitions are closed.

cs

P.K. MISRA, J

178. On 13.10.2006, even though notified to be a holiday, on the basis of special permission obtained from the Hon ble the Chief Justice, W.P.No.39400 of 2006 was permitted to be filed and was listed in the same afternoon before a Division Bench consisting of Hon ble Justice Shri S.J. Mukhopadhaya and Hon ble Justice Shri F.M. Ibrahim Kalifulla, hereinafter referred to as Mukhopadhaya, J and Kalifulla, J for convenience. Other eleven writ petitions were filed a few days thereafter.

179. The main contention raised in all such writ petitions was that the election to Chennai Municipal Corporation held on 13.10.2006 had been vitiated by violence resulting in wholesale booth capturing, rigging, etc., and as such the election to Chennai Municipal Corporation should be declared as null and void, non-est in law and a fresh election in respect of 155 wards should be directed to be held.

180. The first writ petition, namely, W.P.No.39400 of 2006 by AIADMK, which is the principal opposition party in the State, was filed on 13.10.2006 itself, on the date of polling, and the matter was taken up before the said Bench by obtaining special permission from the Hon ble the Chief Justice. The other writ petitions were filed subsequently after the polling was over, but before commencement of the counting. Initially on 17.10.2006, as an interim measure, an order was passed for not commencing the process of counting. Subsequently, on 18.10.2006, after hearing the parties concerned an interim order was passed, which has been extracted in extenso in the order of Kalifulla, J. Thereafter, counting took place and certificates were issued to different successful candidates clearly indicating that election of the candidate concerned as a member of the ward of the Corporation was subject to the result of the writ petitions. Thereafter, hearing of the writ petitions re-commenced before the very same Bench and continued for several days. Ultimately, the orders were pronounced on 12.1.2007. Two learned Judges diferred substantially from each other. While Mukhopadhaya, J. concluded that the writ petitions are to be dismissed, Kalifulla, J. directed the Election Commission to recall the certificates issued to the elected persons in respect of 99 wards specified in the order and directed that fresh election should be held in respect of such 99 wards and allowed the writ petitions to the extent indicated.

181. It was observed by the Division Bench In view of difference of opinion between us let the case be placed before the Hon ble the Chief Justice for appropriate orders . Thereafter, Office Note with a specific reference to Clause 36 of the Letters Patent was placed before the Hon ble the Chief Justice, who endorsed that the matter should be listed before P.K. Misra, J. That is how the matter has come to a third Judge to resolve the difference of opinion expressed in the orders dated 12.1.2007.

182. Even though Clause 36 of the Letters Patent requires that if the opinion of the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including who those first heard it , no specific point on which difference has arisen has been specified. When the matter was placed before me, at the threshold this aspect was highlighted by me and the learned counsels appearing for all the parties have stated that even though points of difference have not been specifically pointed out by the Division Bench, the difference as apparent from various discussions and conclusions of the two learned Judges should be culled out and should be decided on that basis without returning the matter for spelling out the difference.

183. Summary of the relevant findings of Mukhopadhaya, J are as follows:

(i) "At the time of process of election or when the election is being conducted, it" (the Election Commission) "has got power to adjudicate disputes including the question whether free and fair election was conducted in one or other booth/ward." (See para 44)

(ii) "... If the Rule or Act expressly provides the manner in which such action to be taken, the State Election Commission cannot function arbitrarily contrary to the provisions of law. ... It is only when such report is submitted by a Polling Officer or Presiding Officer or Returning Officer or the District Election Officer, the State Election Commission could act on the basis of the same." (see paras 44 & 47) (iii) "The power has to be exercised with great caution taking into consideration the situation, including the extra-ordinary situation if any." (see para 44)

(iv) "... where the election is to be called in question and which may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, as per the Supreme Court decision, invoking of judicial remedy has to be postponed till after the completion of the election." (see para 64) (v) "Action taken or order issued by the Election Commission are open to judicial review such as on a case of mala fide or arbitrary exercise of power being made out or statutory body being shown to have acted in breach of law." (see para 64)

(vi) "... the Court must be very circumspect and act with caution while entertaining any dispute if not hit by the bar under Article 329(b), but brought to it during the pendency of the election proceeding." (see para 64)

(vii) "Though such documents have been produced including unpolled ballot papers with or without stamp, seals, newspaper reports with photographs, etc., but no affidavit has been sworn with respect to the documents and materials nor proved in the manner as required in the law." (see para 77)

(viii) "Neither any candidate has been impleaded as party respondent to any of the writ petition nor any elected candidate has been impleaded as party respondent after the result was declared." (see para 77)

(ix) "Though arbitrary exercise of power being alleged against the statutory body, no specific evidence have been shown against the State Election Commission. ... In absence of specific pleading and presentation of the petition dehors the provisions laid down under Rules, 2006, it is not feasible for this Court to determine whether the election in one or other of the booths or wards were free and fair and thereby whether election of one or other elected councillor of a ward or the 155 wards are void and invalid. (see para 77) (x) "If the Election Commission failed to exercise its power, or exercised its power in contravention of law, penal action may be taken against it but that cannot be a ground to declare the total election as ab initio void till it is shown that failure on the part of the Election Commission has resulted in gross injustice and that there was no free and fair election." (see para 78) In paragraph 80, it was concluded that in view of the forum available under Rule 118 and in view of bar imposed under Article 243ZG, ... it is not possible for this Court, under Article 226, to give any finding on merit as to whether election of one or other or all municipal councillors of Chennai Municipal Corporation held on 13.10.06 were free and fair and thereby they are void and invalid .

184. In the opinion of Kalifulla, J :

(1) "Free and fair Elections are the very foundation of democratic institutions. The Elections should not only be fairly and properly held, but should also seem to be so held to inspire confidence in the minds of the Electors that everything was above board. ... The right to vote if not a fundamental right, is certainly a constitutional right." (2) "To ensure free and fair Elections, the Constitution vests comprehensive responsibility in the Election Commission. ... The Election Commission as a creature of the Constitution, has been invested with residuary power to be exercised in the infinite variety of situations that may emerge from time to time in the large Democracy of ours, as every contingency cannot be foreseen or anticipated with precision. ... To meet such contingencies, the Election Commission has been invested with plenary powers." (3) "An administrative action can be struck down, if the Court is satisfied that there is abuse or misuse of power or that such action of the authority was so absurd that no reasonable person could have arrived at on the given material."

(4) "In a Public Interest Litigation, whenever injustice is meted out to a large number of people, the Court should not hesitate to step in."

(5) "In a Writ Petition under Article 226 of the Constitution, even questions of fact ... can be determined. Merely because one of the parties to the litigation raised a dispute in regard to the facts of the case, the Court dealing with the petition under Article 226 of the Constitution is not always bound to relegate the parties to a different forum." (6) "If exceptional and extraordinary circumstances exist, the Court can by-pass alternative remedies in a Writ Petition under Article 226 of the Constitution."

(7) "If the monstrosity of the situation or other exceptional circumstances cry for timely jurisdictional interdict or mandate, the Court should not hesitate to exercise its extraordinary power under Article 226 of the Constitution."

(8) "The incidents (summarised in para 1104 of Kalifulla,J order) were not sporadic in nature. The media reports can be taken due note of for arriving at conclusion."

(9) "... the first respondent miserably failed in the discharge of his functions as a State Election Commissioner. I am not in a position to accept the simple statement of the first respondent that except a mild tremor, the situation that prevailed on 13.10.2006 in many of the 155 wards, as complained of either by the candidates or by the respective Polling Officers alleging booth capturing and bogus voting, was not true and that the situation was very calm as claimed by him. I am also unable to accept the stand of the first respondent that the petitioners and others who preferred complaints before him including the media reports, was only exaggerated version of miniscule happenings and therefore, the aggrieved party should be directed to work out their remedies by way of Election Petition." (10) Considering the various allegations, contents of the complaints made before the Election Commission, the allegations made in several FIRs about 94 in number, the newspaper reports appearing, it was directed that election in 99 wards specified in para 173 has been vitiated and a direction was issued to the Election Commission to hold election afresh to all the above 99 wards.

185. On carefully going through the orders pronounced by the learned Judges and keeping in view the submissions made by the counsels who are appearing for the writ petitioners or the respondents, it is apparent that by and large the following main questions are required to be considered:

(i) Whether the Election Commission had the jurisdiction to direct re-polling, if so the scope and ambit of such jurisdiction ?

(ii) Whether in view of the provisions contained in Article 243ZG of the Constitution of India, the High Court has any jurisdiction to entertain and decide any petition under Article 226 ?

(iii) Whether in view of availability of the remedy of filing election petition under the statute before the Election Tribunal, the High Court can decide such matters under Article 226 of the Constitution ?

(iv) Whether the High Court can exercise any such jurisdiction when disputed questions of fact arise for determination ?

(v) Whether the elected candidates were necessary parties ?

(vi) Whether re-election should be directed to be held in all or any of the wards of Chennai Municipal Corporation ?

186. At this stage it may be appropriate to notice that after the split verdict was pronounced, 98 elected members out of 99 wards in respect of which there was a direction by Kalifulla, J regarding re-election have resigned and the successful candidate from Ward No.53 alone, which had been specified as one of the wards requiring re-election has not resigned. Such person has filed M.P.No.2 of 2007 for being impleaded as a respondent. M.P.No.3 of 2007 has been filed by an unsuccessful candidate in Ward No.21, which does not come within the wards specified by Kalifulla, J. requiring re-election. It is submitted by him that a direction should be issued for fresh election in respect of his Ward No.21. As a matter of fact, learned counsels appearing for the writ petitioners have submitted that direction regarding holding of election should be given in respect of entire 155 wards and not 99 wards as directed by Kalifulla, J. It may also be pointed out that since 98 elected candidates have tendered their resignations, which have been accepted, the Election Commission has directed for holding fresh election in respect of 100 wards including those 98 wards and 18th February, 2007 is the Scheduled date for polling as per the Notification dated 29.1.2007, which has been filed as typed set in M.P.No.1 of 2007. The prayer in such Miscellaneous Petition is for passing an order directing the State Election Commission to recall the election programme, pending disposal of W.P.No.39400 of 2006.

187. The two Miscellaneous Petitions for being impleaded as respondent have been rejected by Order dated 9.2.2007 as it was felt that the third Judge to whom the reference is made under Clause 36 of the Letters Patent on account of difference of opinion between the learned Judges of the Division Bench cannot entertain such petitions for impleadment of parties, particularly when those persons had not filed any such application while the matter was pending before the Division Bench. Moreover, so far as the successful candidate in Ward No.53 is concerned, it has been specifically indicated in the Certificate issued to him that his election was subject to the result of the writ petitions pending and yet he had not chosen to file any impleading petition at that stage, while the matter was pending before the Division Bench. However, both the counsels appearing for such separate applicants have been heard and for all practical purposes those applicants have been treated as interveners. Incidentally it may also be noted that the counsel who was appearing for the successful elected member in Ward No.53 has also raised the question of validity of the reference to the third Judge on the ground that the points of difference had not been specified by the concerned Bench.

188. I have heard Mr.N. Jothi for the petitioner in WP.No.39400 of 2006, Mr.N.R. Chandran, Senior Counsel for the petitioner in W.P.No.39457 of 2006, Mr.T.V. Ramanujan, Senior Counsel for the petitioner in W.P.No.39458 of 2006, Mr.P. Jayaraman, Senior Counsel for the petitioner in W.P.No.39459 of 2006. Counsels appearing for other writ petitioners or the concerned party-in-person have adopted the submissions made by the above counsels on behalf of the petitioners. Mr.G. Masilamani, Senior Counsel has made his submissions on behalf of the Election Commission, Mr.P.S. Raman, Additional Advocate General has made submissions on behalf of the State and the Commissioner and Additional Commissioner of Police. Mr.K. Alagiriswamy, Senior Counsel has made submissions on behalf of the Director General of Police and Mr. Natarajan has made submissions on behalf of D.M.K. party. All the learned counsels have reiterated the submissions made before the Division Bench and with the benefit of the two differing opinions have focused on the core questions. As already indicated, two applicants have been heard through Mr.N. Panchaksharamoorthy and Mr.D.O. Kaviyanathan

189. Since the allegations made in various writ petitions and the counter affidavits have been referred to in extenso by the two learned Judges, it may not be necessary to refer to the allegations made in the affidavit filed by the petitioners and similarly the counter affidavits of the respondents in any great detail. Suffice it to notice the bare substance. Of course whenever necessary the contents of the affidavits or the counter affidavits would be noticed in detail.

190. W.P.No.39400 of 2006 has been filed by AIADMK. W.P.No.39457 of 2006 has been filed by MDMK, W.P.No.39438 of 2006 has been filed by CPI(M), W.P.No.39458 of 2006 has been filed by BJP and W.P.No.39459 of 2006 has been filed by DMDK. Other 7 writ petitions have been filed by the individuals who have appeared either through their Advocates or in person.

191. It is not disputed that first four political parties constituted the part of opposition and DMK is the ruling party in the state. CPI (M), even though an ally of DMK during the State Assembly Election, contested the Chennai Municipal Corporation election separately and not as an ally. All the writ petitions purport to be public interest litigations. All have been filed at a stage when the election process was not completed and the common prayer was for directing a fresh election in respect of 155 wards of Chennai Municipal Corporation.

192. The burden of song in all the writ petitions is precisely to the effect that on 13.10.2006 because of the violence unleashed by DMK Party, which was the ruling party, there was no free and fair election on the said date and booth capturing in a large scale had taken place and genuine voters had been prevented from exercising their right to vote and the police had remained a mute spectator and the Election Commission failed to discharge its statutory and constitutional obligations of ensuring a free and fair election.

193. It would be convenient to refer to the respondents in the manner they had been arrayed in W.P.No.39400 of 2006. In such writ petition, the Election Commission has been arrayed as Respondent No.1, the Director General of Police had been arrayed as Respondent No.2, the Commissioner of Police and the Additional Commissioner of Police had been impleaded as Respondent Nos.3 and 4 respectively and the DMK party has been impleaded as Respondent No.5.

194. With the above undisputed background material, it may be now necessary to consider the questions.

195. The first two questions relate to question the jurisdiction of the Election Commission and of High Court.

196. The provisions contained in Article 243ZA and 243ZG being relevant are extracted hereunder:

"243ZA. Elections to the Municipalities. (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K.

(2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities"

"243ZG. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution,-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies,made or purporting to be made under article 243ZF shall not be called in question in any court;

(b) no election to any Municipality shall be called in question expect by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

197. These provisions, which form part of Chapter IX-A of the Constitution, were inserted by the Constitution (74th Amendment) Act, 1992 with effect from 1.6.1993. The provisions contained in 243ZA and 243ZG are in pari-materia with the provisions contained in Articles 324 and 329.

198. Regarding jurisdiction of the Election Commission, Mukhopadhaya, J has concluded that the State Election Commission discharges public function and under Article 243ZA, the Commission has to lay down policy and decide on certain administrative matters of importance. It may be called upon to perform quasi-judicial duties; such duties cannot be equated to the duties to be performed by a judicative tribunal for determination of election dispute. However, the learned Judge has also concluded at the time of process of election or when the election is being conducted, it has power to adjudicate disputes including the question as to whether free and fair election was conducted in one or other booth/ward. To this extent, obviously there is no difference of opinion. However, in the opinion of Mukhopadhaya, J, the Election Commission cannot exercise such power except in accordance with the specific provisions contained in the statue and the rules. I am unable to agree with such conclusion for the reasons which are indicated later on. I am of the considered opinion, apart from the provisions contained in the Act or the Rules, depending upon the exigency of circumstances, the Election Commission has ample power to direct re-polling notwithstanding the absence of reports from the polling officials, of course not arbitrarily and without any material on record. This aspect would be highlighted in the later portion.

199. The main plank of the contentions of Mr.G. Masilamani, Counsel for Respondent No.1, and Mr.P.S. Raman, Counsel for Respondent Nos.3 and 4, is based on these provisions bolstered very much by the decision of the Supreme Court in AIR 1952 SC 64 (N.P. PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUTENCY, SALEM AND OTHERS). Theconclusions were summed up in paragraph 18 as follows: 18. . . . (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme the election law in this country as well as in England is that no significance should be attached to anything which does not affect the election; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the election and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.

200. There are several other decisions of the Supreme Court which have been noticed in the judgment of both the learned Judges where similar views have been expressed and it is not necessary to recount all such decisions here.

201. However, no discussion on such aspect can be complete without referring to the Constitution Bench decision of the Supreme Court in AIR 1978 SC 851 (MOHINDER SINGH GILL AND ANOTHER v. CHIEF ELECTION COMMISSIONER AND OTHERS), which has been relied upon by the counsels for both sides.

In the said case, the Election Commission had directed for holding fresh election in respect of a Parliamentary Constituency. The appellant before the Supreme Court had filed writ petition under Article 226 challenging the order of the Election Commissioner. The High Court while negativing the factual contentions raised by the appellant also held that it had no jurisdiction to deal with those questions in view of Article 329(b) of the Constitution and further that the Commission had acted within its wide power under Article 324. While considering the scope of judicial review, it was observed:

"30. 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. Durga Shankar Mehta has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Courts overall power to interfere under Article 136 springs into action. In Hari Vishnu this Court upheld the rule in Ponnuswami 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. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Article 329(b) does not bind.

31. If election bears the larger connotation, if calling in question possesses a semantic sweep in plain English, if policy and principle are tool for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a 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 appointed instrumentality viz. the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality 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. The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter. (Emphasis added)

202. From the observations made by the Supreme Court in Mohinder Singh Gill's case, it is apparent that the Election Commission has jurisdiction to direct re-poll in one polling station or in many polling stations for good reasons. If the regular poll for some reason has failed to reach the goal of choosing by plurality 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.

203. The expression election must obviously mean a free and fair election. If the Election Commission on the basis of relevant materials comes to a conclusion that a fair election has not been held either in respect of one ward or even all the wards, it has the jurisdiction to direct re-polling in all the wards. As a matter of fact, Mukhopadhaya, J has also recognised such jurisdiction of the Election Commission.

204. In the Mohinder Singh Gill's case, while recognizing that plenary provisions contained in Article 324 has to be read in the light of the constitutional scheme and the Representation of the People Act, 1950 and the Representation of the People Act,1951 and observing that the Election Commissioner cannot defy the law armed by Article 324, it was observed:

39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words superintendence, direction and control, as well as conduct of all elections, are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankensteins monster who may manipulate the system into elected despotism instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment. Secondly, when a high functionary like. the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra and Harishankar discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused, certainly the Court has power to strike down the act. This is well established and does not need further case law confirmation. ..." (Emphasis added)

205. Ultimately, the conclusions were summarized in para 91 in the following words:

(1)(a)Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result.

(b)Election, in this context, has a very wide connotation commencing from the Presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.

(2)(a)The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances. (b)Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunals adjudication. (3)The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Article 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law."

206. Justice Goswami, in his concurring judgment held:

"113. . . . The Election Commission is a high-powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course in accordance with the existing laws. But where these are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner. An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty .... That which is clearly implied is as much a part of a law as that which is expressed . (Emphasis added)

207. Learned counsels for the petitioners relying upon various observations of the Supreme Court in the said case had submitted before the Division Bench and reiterated before me that it was the Constitutional obligation of the Election Commission to ensure a free and fair election and it had ample power under Article 243ZA to do so, but by allowing polling, which was marred by serious violence, booth capturing, etc., on an unprecedented magnitude to continue and by not directing a fresh polling, the Election Commission has abdicated its Constitutional and statutory duties and obligations and since such statutory and Constitutional authority has failed to exercise its jurisdiction, the High Court has sufficient jurisdiction to issue necessary direction by quashing the election, which was permitted to be completed, subject to the result of the writ petitions.

208. Learned counsels for the respondents, on the other hand, have emphasised that the judgment of the Supreme Court in Ponnuswami's case and Mohinder Singh Gill's case clearly lay down that there should not be any interference during election process and there should not be any interference after election process except in accordance with the statutory provisions contained in the relevant statute. Learned counsels for the petitioners have however submitted that the ratio laid down in Ponnuswami's case and subsequently followed and reiterated in several cases lay down the general principle of law and certain exceptional circumstances under which the High Court can interfere has been recognized in several cases. According to them, one such case is reported in AIR 2000 SC 2979 (ELECTION COMMISSION OF INDIA THROUGH SECRETARY v. ASHOK KUMAR AND OTHERS). In the said case, the appeal was filed against an interim order passed by the High Court in exercise of writ jurisdiction under Article 226 staying the notification issued by the Election Commission of India containing direction as to the manner of counting. The order also contained the direction issued by the High Court on such matter. In the said case, after referring to several decisions of the Supreme Court, including Ponnuswami's case and Mohinder Singh Gill's case and other decisions, which had followed those cases, it was observed:- 20. Vide para 29 in Mohinder Singh Gill case the Constitution Bench noticed two types of decisions and two types of challenges: the first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. A reading of Mohinder Singh Gill case points out that there may be a few controversies which may not attract the wrath of Article 329(b). To wit: (i) power vested in a functionary like the Election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objectivity and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or mala fide. (ii) A dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gill case this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30 if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Courts intervention in such a case will facilitate the flow and not stop the election stream.

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 Courts intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this Court cited at the Bar. ...

29. . . . The conclusions which inevitably follow are: in the field of election jurisprudence, ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.

30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy. 31. The founding fathers of the Constitution have consciously employed use of the words no election shall be called in question in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court calls in question an election the bar of Article 329(b) is attracted. Else it is not.

32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. 5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." (Emphasis added)

209. At this stage, it may be necessary to notice the decisions of the Supreme Court wherein instead of relegating the parties to pursue the statutory remedies available in the matters arising out of election, the Supreme Court had upheld the interference made by the High Court in such matters in exercise of jurisdiction under Article 226 of the Constitution.

210. One such matter had arisen out of the decision of the Madras High Court reported in AIR 1987 Madras 60 (A. SWAMICKAN v. K. VENKATACHALAM AND ANOTHER). The person who had got elected as a Member of the Legislative Assembly was not qualified to be a member as he did not possess the basic qualification prescribed in clause (c) of Article 173 read with Section 5 of the Representation of the People Act, 1951 as he was not an elector in the concerned Constituency. Even though the writ petition was dismissed by the single Judge, the appeal filed was allowed and the matter was taken to the Supreme Court in AIR 1999 SC 1723 (K. VENKATACHALAM v A.SWAMICKAN).

211. Almost inevitably several decisions of the Supreme Court, including Ponnuswami's case, Mohinder Singh Gill's case and several other decisions which has followed those two decisions, were pressed into service before the Supreme Court in support of the contention that the High Court had no jurisdiction. While dismissing the appeal, it was observed: "27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution ?"

212. In AIR 1996 SC 1507 (SURIENDER KAUR v. STATE OF PUNJAB), the decision of the Punjab High Court reported in AIR 1994 P & H 185 declining to interfere with the declaration of result in the election on the ground that alternative remedy of filing of election dispute was available, the Supreme Court set aside such election as it found that the appellant before the Supreme Court had been illegally prevented from filing the nomination paper.

213. In AIR 2006 SCW 470 : 2006 (9) SCALE 147 : JT 2006 (12) SC 34 (JAYARAJBHAI JAYANTIBHAI PATEL v. ANILBHAI JAYANTIBHAI PATEL AND OTHERS), votes secured by two candidates for the office of the President of a Municipality were equal and in accordance with the prescribed rules, there was a drawal of lots and the appellant before the Supreme Court was declared elected. The writ petitions were filed before Gujarat High Court challenging such election on the ground that two Councillors were not able to attend the meeting as they had been arrested by the police on the date of meeting. Before the High Court, both those Councillors filed affidavits stating that they would have voted for the first respondent. The High Court accordingly set aside the election of the appellant and declared that the first respondent was the President of the Municipality. In the appeal filed by the person, who lost out before the Supreme Court, the Supreme Court concurred with the findings of the High Court that two Councillors, who were potential voters, were prevented from participating in the election and, therefore, the election was rightly set aside. The Supreme Court, however, disapproved the direction of the High Court declaring Respondent No.1 before the Supreme Court as elected President on the basis of two affidavits filed by those Councillors and directed that a fresh polling should take place. The Supreme Court observed as follows: "18. Having regard to it all, it is mainfest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercised the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision." (Emphasis supplied)

214. Apart from the above decisions of the Supreme Court, Mr.N. Jothi, learned counsel appearing for the petitioner in W.P.No.39400 of 2006, has also placed reliance upon a Full Bench decision of Andhra Pradesh High Court reported in AIR 1996 A.P. 37 (S. FAKRUDDIN AND OTHERS ETC. v. THE GOVERNMENT OF A.P. AND OTHERS ETC.,), wherein by interpreting the similar provisions like Article 243ZA and 243ZG of the Constitution, it was observed: "19. ... The preponderance of the judicial opinion and the view of the Supreme Court as expressed in various pronouncements leave no doubt in our mind not withstanding the bar that the bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under Art.226 of the Constitution and Art.136 thereof. It is not necessary for us therefore to pronounce that Art.243(O) is unconstitutional; simply it does not take away the power of this Court under Art.226 of the Constitution to examine the validity of any law relating to the elections including the delimitation of constituencies or he allotment of seats to such constituencies made or purporting to be made under Art.243K of the Constitution. As respect challenge to the election or any intermediary stage in case there is an alternative effective and independent mechanism provided, the Court shall abstain to interfere except on jurisdictional errors i.e., when infirmity is based on violation of constitutional mandate, mala fides, non-compliance with Rules of natural justice and perversity. It will be so for the reason of prudence as well as defence to the legislation by the Parliament in exercise of its constituent power."

215. Mr.N.R. Chandran, Senior Counsel, has relied upon an unreported Division Bench of this Court in W.P. Nos.16132 & 16133/95 and 13676 & 13677/96 (T. VINAYAGAM & 3 OTHERS v. UNION OF INDIA AND 2 OTHERS) dated 30.4.1998, which has interpreted the scope of Article 243-O and 243ZG and the scope of interference by the High Court. In the said case the challenge was relating to reservation of seats for holding election to various local bodies in the Union Territory of Pondicherry among other States. Maintainability of such writ petitions in view of the provisions contained in Article 243ZA and 243ZG was questioned. After referring to several decisions, which in their turn were based on the decisions of the Supreme Court in Ponnuswami's case and Mohinder Singh Gill's case and after referring to L. CHANDRA KUMAR v. UNION OF INDIA reported in AIR 1997 SC 1125, it was observed: "15. From the above, it could be seen that the emerging essential principle is not to interfere with the process of election so as to either postpone the same or conduct the elections afresh by imposing the views of Courts, once the process of election has commenced. At the same time, it cannot be legitimately contended that absolute immunity is granted to any and every action taken or the violations committed, even before the process of election commenced. . . .

16. On a careful analysis and consideration of the above referred to judicial pronouncements, we are of the view that the plea of absolute and total bar projected for the respondent-State cannot be countenanced for the reason that even the decisions relied upon by the learned senior counsel for the respondents do not lend support to such a claim of absolute and total bar and also for the further reason that in those decisions, only the scope of the provisions as it existed were considered and the question of such construction offending the basic structure and rendering the very provision imposing such an absolute bar being rendered unconstitutional as offending the basic structure of the Constitution, was not dealt with until the decision of the Apex Court in L. CHANDRA KUMAR VS UNION OF INDIA (AIR 1997 SC 1125)(Supra). The question that if so construed in absolute terms, it would offend the basic structure of the Constitution, having been raised before us, we are obliged to also construe these provisions in a restricted manner by virtue of the compelling force of the authority of the Apex Court in the declaration of law made in A.I.R. 1997 S.C 1125 (supra). ... Consequently, in view of the latest decision of the apex court reported in AIR 1997 SC 1125 (supra), we are obliged to construe Article 243-O and 243ZG of the Constitution as not to impose any bar in absolute terms and that on the other hand courts exercising jurisdiction under Article 226/227 must act with great circumspection and should not interfere in a routine manner and as a matter of course, in all case and for any or every irregularity pointed out or urged so as to bring about a statement in the timely conduct of Election as to the various local bodies. . . . But, where the monstrosity of a situation created is such as to make the whole elections a mockery in terms and purport and the very negation of democracy and the action taken virtually amounts to a colourable exercise of power and even would seem to be a fraud on the Constitution itself, it would be nothing but an abdication of powers as well as responsibilities of Courts exercising powers of Judicial review to turn their Nelson eye to such situations, even when brought before Court and proved to be so on the face of it. Consequently, the objections raised on behalf of the respondent-State Government to the maintainability of the Writ Petitions cannot be sustained and they shall stand rejected." (Emphasis added)

216. This unreported Division Bench decision, which has taken note of other relevant decisions, is obviously binding and it cannot be said that the observations made in the above Division Bench decision are in any way contrary to any subsequent decisions of the Supreme Court. On the other hand, the observations made by the Supreme Court in (2005)8 SCC 383 (HARNEK SINGH v. CHARANJIT SINGH AND OTHERS), indirectly gives a stamp of approval to the observations made by Justice Raju, as His Lordship then was, in the aforesaid decision. It was observed : "16. Article 243-O of the Constitution mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question."

217. It is well recognised as apparent from Mohinder Singh Gill's case and Ashok Kumar's case as well as unreported decision of the High Court that if the Election Commission acts arbitrarily such action can be called in question before the High Court of course within the known and defined parameters. The concept of arbitrary action could obviously include "arbitrary inaction". Where a particular authority fails to exercise jurisdiction vested in it and thereby causes public wrong, appropriate direction or writ can be issued.

218. Keeping in view the observations made in Ashok Kumar's case and the observations made by this Court in the above unreported judgment, it can be said that though generally the jurisdiction of the High Court should not be invoked under Article 226 to interfere with any ongoing process of election and should not be invoked directly to interfere with any matter connected to election after the election process was over, it cannot be said that there is an absolute bar to invoke such extraordinary jurisdiction under Article 226. Therefore, it cannot be said that a writ petition is not maintainable in all circumstances; rather it would be more appropriate to say that under special circumstances a writ petition would be maintainable in the matters relating to elections even before completion of the election process and after completion of the election process. What would be the exceptional circumstances in a given case where the extraordinary jurisdiction under Article 226 can be invoked is obviously a matter which would depend upon the facts and circumstances of each case and it is not possible nor desirable to lay down the circumstances in which such jurisdiction can be invoked.

219. If I may be permitted to say so, with utmost respect, the observations made by Mukhopadhaya, J lay down the general principle applicable in such matters, whereas the observations made by Kalifulla, J carve out an exception or the proviso in such mattes. My ultimate conclusion is that in a fit case, within the known parameters, it would be open to the High Court in exercise of extraordinary jurisdiction under Article 226 to interfere in such matters, even before completion of election process or after conclusion of election process.

220. It has been strongly contended by the learned counsels appearing for the respondents that it is a well known proposition of law that when adequate equally efficacious alternative remedy is available, particularly in the matters relating to election, jurisdiction under Article 226 should not be invoked and the parties must be relegated to pursue their remedy under the election law. This again is the general principle relating to exercise of jurisdiction under Article 226, but such principle, which is accepted as a self-imposed restraint does not operate as an absolute bar and depending upon the peculiar facts and circumstances of a given case, it is open to the High Court to entertain and interfere in matters relating to election without relegating to the affected persons the more conventional remedy of election dispute. In this connection, the decision reported in 1987 Supp. SCC 512 (GUJARAT UNIVERSITY v. N.U. RAJGURU), while recognising the normal restriction on the High Court's power, it was observed : "6. ... It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. ..." (Emphasis added)

221. Similarly the learned counsels for the respondents have vehemently contended that when disputed questions of fact are raised, jurisdiction of the High Court under Article 226 is ousted.

This again is a self-imposed restriction which is followed almost universally, but is not an absolute bar.

222. In (1969) 3 SCC 769 (GUNWANT KAUR v. MUNICIPAL COMMITTEE, BHATINDA), the Supreme Court has observed :

"14. . . . The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. ...

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit." (Emphasis supplied)

223. The aforesaid observation of the Supreme Court in (1969) 3 SCC 769 (cited supra) was followed and reiterated in (2004) 3 SCC 553 (ABL INTERNATIONAL LTD. v. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.,), wherein it was observed :

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact." (Emphasis supplied)

224. These decisions, therefore, make it clear that in exceptional cases jurisdiction under Article 226 can be invoked notwithstanding the fact that the writ petition involves some disputed questions of fact.

225. A detailed analysis of the statutory provisions contained in the Chennai City Municipal Corporation Act, 1919 relating to election of Councillors is available in the pronouncement of Mukhopadhaya, J. Similarly an in-depth analysis of relevant provisions connected with polling arrangement is also available and it is not necessary to recount all those aspects. However, it can be only stated that those statutory provisions relate to various circumstances under which re-polling can be ordered either by the State Election Commission or the State Election Officer. However, with utmost respect, I am unable to accept the conclusion that apart from the contemplated provisions, the Election Commission has no power to direct re-polling for a particular polling booth or even in respect of entire wards. In the words of the Supreme Court in Mohinder Singh Gill's case, there may be circumstances which are not covered under the statute which require the interference of the Election Commission to ensure a free and fair poll. It is no doubt true that the Election Commission is not expected to act arbitrarily. However, it would not be correct to state that unless a report is made by a Polling Officer, a Presiding Officer, a Returning Officer or a District Election Officer, the State Election Commissioner is powerless to direct re-polling even if he is satisfied that free and fair election has not taken place. The Election Commission is empowered to act upon such reports, but it does not mean that it is powerless bereft of such reports. The onerous duty is cast on the Election Commission to hold a free and fair election. If the Commission receives any information about the impurity of the election - such information can be the report of the officials, complaints by candidates, agents or voters and even newspaper reports - it can and should act. It of course depends upon the satisfaction of the Election Commission on the basis of materials to come to any particular decision as to whether polling process should be interfered with. Since it is the duty of the Election Commission to ensure a free and fair election, it is within its power to direct re-polling or fresh polling in any of the booths or any of the wards, if in its opinion, of course on the basis of materials on record and not arbitrarily, it is necessary to hold such fresh election. As observed in Mohinder Singh Gill's case, the Commission cannot act in an arbitrary fashion. Similarly, in view of the constitutional and statutory obligation to ensure a free and fair election, the Election Commission cannot be an embodiment of inaction merely because formal reports are not forthcoming from the election officials when complaints are made either by the candidates or the agents or even members of general public on the date of election or even newspaper published soon thereafter. It is the duty of the Election Commission to look into such matters in a dispassionate manner. There may be cross-checking of any aspect, if necessary, to come to any conclusion as to whether there is any necessity of fresh polling in any of the ward or most of the wards or even in none of the wards. Once he comes to such a conclusion, even though such a decision may be open to judicial scrutiny either during the election or even thereafter, it is obvious that the Court is required to give due credence to the decision and not to interfere on the slightest pretext. The High Court, at that stage, is not expected to act as an appellate authority. Obviously the court is bound to decide such matters within the limited, but, well known parameters. If the Court comes to a conclusion that the decision of the Election Commission cannot be sustained, the Court has power to remedy the mistake. Similarly if the court comes to a justifiable conclusion that the Election Commission has failed to discharge its constitutional duty and obligation, the court has jurisdiction to issue necessary directions by way of mandamus to the Election Commission or even issue positive direction in the matter, if the materials before the Court so justify.

226. If what happened was a negation of the lofty democratic values held so dear as apparent from the observations made by the Supreme Court on numerous occasions and was a mockery of democracy, certainly it was the constitutional obligation of the Election Commission to draw from the "reservoir" and to take prompt remedial measures. He was not expected to "fold his hands and pray to God for divine inspiration". "WE THE PEOPLE OF INDIA", who gave themselves the Constitution, look upto and depend upon the constitutional functionary, namely, the Election Commission, to take all possible steps to protect democracy and if there is any failure expect the judiciary to intervene, of course within the parameters delineated. The unforgiving posterity is not expected to condone the lapse on the part of any constitutional authority including the judiciary in such moments of crisis.

227. In the above context, it is apparent from a bare reading of the opinion of Kalifulla,J that the Election Commission has hardly taken any initiative to find out as to whether there was any truth in the numerous allegations made. Many allegations had been made fairly early on the date of polling itself. From the counter affidavit filed by the Election Commission it appears that 29 out of 30 complaints received had been merely forwarded by the office of the Election Commission to the Commissioner of Police or to the Inspector General in charge of the election. One such a complaint has been forwarded by the Election Commission himself (the fact that such a complaint was made by a functionary of DMK party may be only a coincidence). The counter affidavit filed by the Secretary of the Election Commission nor the materials on record do not indicate that even after the polling was over, the Election Commission has tried to ascertain from the Police Commissioner or the Inspector General or even the Election Officials as to whether there was any truth in those allegations. Similarly there is nothing on record that the Election Commissioner after he woke-up from his sleep on the next morning and was confronted with the disturbing reports appearing almost uniformly in all the leading newspaper both in English and in Tamil, many of them containing stark pictorial proof of the "purity of the election process" had even bothered to find out the reality.

228. It is of course true that the Election Commission had directed re-polling initially in 17 booths on the basis of the report furnished by the Commissioner of the Corporation, who was the District Election Officer, and subsequently may be when prodded by the Division Bench he had directed for re-polling in 27 booths (44 in all). There is nothing to indicate that he had ever tried to find out regarding the several complaints which were either directly filed before the Election Commission or filed before the police. It is no doubt true that one writ petition, namely, WP.No.39400 of 2006, was filed on 13.10.2006 itself and several others were filed on 16.10.2006. But, mere pendency of such writ petitions did not prevent the Election Commissioner from trying to ascertain the truth. He cannot claim that because the matter was pending, he was precluded to consider the matter. In that case, possibly he could not have even directed for fresh polling in 44 booths or atleast 27 booths as he took such decision for re-polling only on or after 16.10.2006.

229. Lot of argument was advanced on the question as to whether while deciding the matter Election Commissioner or for that matterthe Court could rely upon the newspaper reports. Several decisions of the Supreme Court have been cited on behalf of the respondents laying down that the newspaper reports can be described only as a secondhand secondary evidence and cannot form basis of a decision in a court of law. As a matter of fact, all those decisions were either relating to criminal cases or election disputes. A trial in a criminal court is obviously controlled by the provisions contained in the Evidence Act and similarly such provisions are also applicable to the election dispute before the courts or tribunals trying such election disputes. Judged in the light of the provisions contained in the Evidence Act, there cannot be two opinion regarding the fact that no decision of the court can be based only on the basis of the newspaper reports, which are obviously hearsay in nature - therefore, aptly described as secondhand secondary evidence. However, I do not think the Election Commission while considering a matter as to whether there should be re-polling or not is bound by the strict and at times technical rules of the Evidence Act, even though he is also not expected to act on the basis of mere gossip. He can initiate any steps on the basis of newspaper reports. Similarly it may not be correct to state that in no case the High Court can look into a newspaper report. Whether or not a newspaper report can be relied upon by the High Court would obviously depend upon the nature of jurisdiction being exercised by the High Court. If the question is of admissibility of newspaper report in any appeal arising out of civil or criminal proceedings, obviously the Evidence Act being applicable, the High Court is required to go by the provisions of the Evidence Act. Where the proceeding is a public interest litigation, there is no embargo to rely upon such reports. What materials can be relied upon by the High Court in a writ petition would obviously depend upon the nature of jurisdiction. For example, it is well settled that in a domestic enquiry the strict and technical rules of the Evidence Act are not applicable. If such matters come to High Court, obviously the High Court is equally free of the shackles. A confession before a police officer may not be admissible in a criminal trial, but in the realm of preventive detention jurisprudence, the detaining authority may rely upon such confession. If the matter thereafter comes to the High Court, such material cannot be eschewed by High Court.

230. There are many instances where courts of law have issued directions concerning public interest prompted by newspaper reports.

In W.P.No.25153 of 2005, disposed of on 28.8.2005, it has been observed :

"43. ... The history of public interest litigations in India is replete with many instances where the High Court or the Supreme Court on the basis of such informal materials, such as letter written by some responsible organisation, report appearing in the newspaper and the like, have initiated public interest litigations.

44. The decision reported in 1995 Supp (3) SCC 736 (SECRETARY, HAILAKANDI BAR ASSOCIATION v. STATE OF ASSAM AND ANOTHER) is one such instance where the letter of the Bar Association containing allegation of torture by police was treated as writ petition and thereafter direction was issued for registration of crime and C.B.I was directed to make investigation.

45. There are many decisions, where on the basis of newspaper reports such proceedings have been initiated, such as 1993 Supp (1) SCC 418 (GEORGE FERNANDES v. UNION OF INDIA AND OTHERS), AIR 1979 SC 1360 (HUSSAINARA KHATOON v. STATE OF BIHAR) and (2003) 2 SCC 673(ONKAR LAL BAJAJ & OTHERS v. UNION OF INDIA AND ANOTHER) (see paragraphs 55 & 56) and (2004) 5 SCC 124 (News Item Madhepura in a Tizzy Over Pappu visit In the Times of India Dt.5-5-04. In re)."

231. Not in the distant past, the Chief Election Commissioner of India had taken initiative of transfer of police officials on the basis of such newspaper report, as is apparent from the decision of this Court reported in PON PARAMAGURU & OTHERS v. STATE OF TAMIL NADU AND OTHERS {(2006) 3 MLJ 129}. The concept of initiation of action on the basis of newspaper report is not foreign to constitutional authority like the Election Commission.

232. Similarly the Election Commission could have and rather should have embarked upon enquiry when confronted with so many newspaper reports / photographs highlighting the poll related violence on the fateful day. May be the Election Commission was following the policy of "read no evil, see no evil, hear no evil and speak no evil". It is very difficult to either understand or appreciate such sphinx like silence or an Ostrich in the sand attitude. I have no hesitation in coming to a conclusion in agreement with the observations made by Kalifulla, J that the State Election Commission had failed to discharge its constitutional obligations inasmuch as it never made any worthwhile attempt to find out whether the "election held on that day was indeed a free and fair election or a mere charade".

233. The question which looms large is whether the Election Commission ever made any serious attempt to apply his mind to various allegations made either before him or before the police and the startling and shocking reports uniformly appearing in several newspapers.

234. The next question is whether there were sufficient materials before the Court to come to the conclusion that polling in any or all of the wards were vitiated. Mukhopadhaya, J has observed:

"8. On 13.10.06, in the afternoon when the case was taken up, about thousand persons gathered inside the court premises and after much persuasion about a hundred and odd persons alone were allowed to watch the proceedings inside the court and about ten to fifteen members of lawyers and other persons were produced before the court with injury in support of the claim as made by the petitioner in the writ petition. A large number of unpolled ballot papers of about 'eight' to 'ten' booths with stamp on 'Rising Sun' symbol or without stamp were produced in many of which there were signatures of some officer in the back portion, but many of them were also blank. We are narrating the aforesaid fact as all these documents were produced before the Court and on request were kept separately and shown to the learned Advocate General, the counsel for the State of Tamil Nadu as also the counsel for the State Election Commission. ...

48. ... Though certain materials were placed before the Court to suggest large scale looting of ballot papers, violence, etc., but it was not possible for the Court to determine on the same day as to whether violence took place in all the places obstructing the poll in some of the booths or in all the booths and thereby the poll of all the wards or in some of the wards were obstructed. ...

76. What is produced before this Court is different unpolled stamped and unstamped ballot papers of about eight to ten booths. In many cases, booklets of ballot papers have been produced in some of which there are seal on the symbol "Rising Sun"; in some of them the seal of the Presiding Officer is affixed on the symbol "Rising Sun" and in many of them there is no seal on any of the symbol; in some of them there is counter-signature of some officer in the back of the ballot papers; in some of them there is no such counter-signature of any person in the back portion, but none of them bear the name of any individual voter and admittedly all the ballot papers are unpolled ballot papers. It is alleged that they were lying on the street and in some cases it is stated that from the party members of the 5th respondent, they were snatched away by the members of the petitioner-party and produced as evidence before the petitioner's party office and then before the Court. The other evidence are three to four seals. On 13.10.06 about ten to twelve candidates were produced, who have been injured with bandage on their head or on other parts of the body. Newspaper reports of different newspapers dated 14.10.06, photographs of injury and loot of ballot papers and boxes as printed in different newspapers published on 14.10.06 or thereafter have been produced. There are complaints and police reports in 94 cases brought to the notice of the Court to suggest that some violence took place on the date of poll in the city of Chennai and 30 complaint petitions preferred by one or other political party before the State Election Commission were also produced by the State Election Commission. It was accepted on behalf of the State Election Commission that large number of complaints were received in its office apart from the thirty complaints, where grave allegations were made and where the matter was referred to the police authorities." (Emphasis Mine)

However, in was concluded in paragraph 77 as follows :

"77. Though such documents have been produced including unpolled ballot papers with or without stamp, seals, newspaper reports with photographs, etc., but no affidavit has been sworn with respect to the documents and materials nor proved in the manner as required in the law. Neither any candidate has been impleaded as party respondent to any of the writ petition nor any elected candidate has been impleaded as party respondent after the result was declared. In the present case, no individual has been impleaded as party respondent in any of the writ petition, nor any specific mala fide has been alleged against individual. Though arbitrary exercise of power being alleged against the statutory body, no specific evidence have been shown against the State Election Commission."

235. It is of course true as observed "no affidavit has been sworn with respect to the documents and materials" in the sense that the documents which have been filed as typed sets have not been made annexures and part of the affidavit as is the practice in many other High Courts. However, my experience for more than 5= years indicates that as a matter of "practice" of this court documents are filed in the shape of typed sets across the table and, if no objection is raised by either side, such documents are taken into consideration, even though no specific affidavits are filed for accepting such documents. To be fair to all the counsels who have appeared before me in this case, it must be said that they have not stated that they had raised any specific objection at the time when different papers such as newspapers, reports or other documents were produced before the Division Bench. No single Advocate has stated before me that no such practice of accepting and considering documents just across the table is prevalent in this court. Even though out of curiosity I have examined the rules and found that the documents are required to be filed along with the affidavit and if any subsequent documents are required to be considered, appropriate affidavit is also required to be filed, the practice in vogue is entirely different. However undesirable such practice may be, and however prudent it may be, to discard such practice in future by strictly adhering to the rules in future, at the time when the documents were placed before the court, no objections had been raised. It is therefore too late in the day to submit that various documents filed by different parties including even the contesting respondents are to be consigned to dust bin merely because specific supporting affidavits had not been filed while filing such documents or because no specific permission had been sought for by filing any petition. It is well known that the rules of procedure are handmaids of justice not its mistress. If such rules of procedure are not being strictly followed and documents and papers are being accepted for a long period without insisting upon compliance with the formal rules, it would be unjust to reject such materials on the ground that the documents have been filed not in accordance with the rules.

236. It is now necessary to collate various materials which are available on record. The observations made by Mukhopadhaya, J in paragraphs 76 and 77 have already been extracted. It is already observed that on 13.10.2006, when W.P.No.39400 of 2006 was taken up on special mentioning, several persons including some Advocates and candidates, who were stated to be injured during the due to poll related violence, had appeared before the Bench which fact has been noticed by both the learned Judges. Similarly many ballot papers either containing some marks or without such marks were produced are still available.

237. As has been observed by Kalifulla, J on the basis of perusal of the counter affidavits filed by the Election Commission, it is apparent that complaints were received by the Election Commission from different political parties like DMK, AIADMK, CPI(M), DMDK, BJP as well as independent candidates, and even, polling officers alleging acts of violence and booth capturing. As per the stand of the Election Commission, such complaints had been forwarded to the Inspector General of Police(Elections), Commissioner of Police, Superintendent of Police, District Election Officer and District Collector/Commissioner of Chennai Municipal Corporation. However, nothing is indicated either by the Election Commissioner or even by the police officials as to the feedback given by such persons on such complaints. The counter affidavits filed by the Secretary of the Election Commission do not indicate that the Election Commissioner ever made any worthwhile attempt to find out as to what happened to those complaints. In the counter affidavit dated 15.10.2006 in W.P.No.39400 of 2006, the Election Commission has annexed a list of 30 complaints and the nature of the complaints which indicate various poll related violence, bogus voting, booth capturing, security threat and snatching of ballot boxes. Those complaints contained allegation of bogus voting, booth capturing in several wards. In the subsequent counter affidavit dated 29.10.2006, the Election Commission had stated that numerous petitions/complaints were received over phone as well as in person which were forwarded to the police authorities. Significantly enough, the affidavits filed on behalf of the Election Commission at different stages do not whisper a single word about what was the feedback on those complaints. It is not in dispute that the Election Commission had initially ordered for re-polling in 17 booths which related to Ward Nos.23, 35, 45, 48 and 149. These wards were different from 19 wards with reference to which complaints had been received and such re-polling had been ordered apparently on the basis of the report of the District Election Commission. Even in the affidavit of the Election Commission it had been admitted that there were instances of snatching away of unpolled ballot papers and empty ballot boxes which were substituted and recovered. Subsequently, while the matter was being heard, the Election Commission had directed re-polling in respect of 27 other booths.

238. Apart from the above, from the counter affidavit of the Commissioner of Police it is apparent that 94 FIRs had been lodged alleging poll related violence. Nothing is indicated as to whether the police officials ever tried to communicate such allegations to any of the election officials, including the Election Commission. Similarly, even though it is claimed in the affidavit of the Secretary to the Election Commission that the Election Commissioner was in constant touch with the police and monitoring the situation, there is nothing to indicate that the police officials had brought the allegations made by different parties complaining of poll related violence to the notice of the Election Commission. In fact the affidavit of the Commissioner of Police gives an impression as if the Commissioner of Police has nothing to do with the alleged incidents inside the election booths, unless the concerned election officer lodges any complaint with the police authorities.

239. Apart from the above, Justice Kalifulla, J has also referred to various wards wherein disturbance had occurred as per the allegations made in the writ petitions. It is contended by the learned counsels appearing for the respondents that the allegations made in the writ petitions were vague and particulars had not been given. Even assuming so, the counter affidavits filed by the Election Commission and the police officials refer to various allegations which had been made before the Election Commission or the police officials. Apart from the above, almost all the newspapers including several all India newspapers, such as Hindu and Indian Express and many established Tamil newspapers Dina Thanthi, Dina Mani, Dina Malar, which have got wide circulation, had highlighted about the extraordinary situation. On the face of it such materials could not have been wished away by the concerned authorities such as Election Commissioner or the police officials as mere sporadic incidents.

240. In the present case, the newspaper reports do not constitute the sole basis for the observations made by Kalifulla, J. Such newspaper reports have been accepted only as corroborative materials in support of other materials on record such as affidavits, various complaints and FIRs and production of several ballot papers which have been narrated in the order of both the learned Judges and more particularly in the order of Kalifulla, J.

241. From such materials, which had been produced before the Court, it cannot be said that there was merely a "mild" tremor in the words of the Election Commission, but in reality it can be described as unleashing of tsunami. One does not have to descend from heaven to conclude that all was not well during polling and what was unleashed on the fateful 13th day of October was indeed hell on earth so to say. As a constitutional functionary, it was obviously the duty of the Election Commission to ensure a free and fair election on the said date. When numerous complaints had been made through telephone calls, through applications and before police, only an Ostrich with the head deeply buried in sand can pretend as if nothing had happened, particularly when there was enough opportunity even after the date of polling and before the date ultimately fixed for counting to make sincere efforts to assess the magnitude of the alleged poll violence on the date of polling. Even in the affidavits filed on behalf of the Election Commission, which was sworn to by the Secretary, even though the Election Commission was the party in all the writ petitions, it has not been stated that the Election Commissioner had himself perused any of the complaints filed. The complaints which have been produced indicate that an endorsement had been made on behalf of the Secretary forwarding 29 of the complaints with the police officers or other officers and one complaint which had been made by a functionary belonging to DMK party had the good fortune of being endorsed by the Election Commissioner himself of being forwarded for taking immediate action.

242. Keeping in view the lofty ideals of free and fair election, the Election Commission could not have been found fault with if it could have come to a conclusion that re-election was required in any or all of the wards. He was not expected to seek for evidence beyond all reasonable doubt, rather a preponderance of probability or even reasonable suspicion regarding the fairness of the poll could have justified taking adequate measures by directing re-polling. In such circumstances, he could or rather should have "erred" in order to uphold the fairness of the election process rather than acquiesce in continuing such tainted election no matter if some of the candidates were not actually guilty of direct booth capturing. It was the duty of the Election Commissioner to show to the rest of the country that the value and principle of free and fair poll was above everything else. If the minions of the election mechanism remain quiet, the super authority , namely, the Election Commission, should have risen to the occasion. Instead of adopting an attitude of obduracy, it would have been better to act in order to avoid the possibility of the criticism that when Rome was burning Nero was fiddling.

243. It has been recognised in Kesavananda Bharati's case reported in (1973) 4 SCC 225 by many of the Judges of the Supreme Court forming the majority that democracy is a basic right and free and fair poll has been considered to be an essential part of the democracy. Election is no longer considered as a mere statutory right, but it has been accorded the elevated status of a constitutional right and the actual casting of vote has been considered as a fundamental right of the freedom of expression. The Election Commission being the constitutional repository of the collective confidence reposed by the State representing the entire citizens, is required to ensure free and fair poll so that the basic right is not affected. The primary question in such public interest litigation is therefore whether free and fair poll could be ensured.

244. From the materials, culled out from various complaints and FIRs and even ignoring the allegations made in the writ petitions, I am inclined to agree with the conclusion of Kalifulla, J that free and fair polling on 13.10.2006 had been massively affected.

245. In view of the above conclusion, the question is whether the election in respect of all the wards should have been directed to be set aside.

246. Counsels appearing for the petitioners has contended that even though Chennai city is fairly a large city, various places are not islands in far-flung areas like Lakshadwip and if such massive poll violence takes place in several parts across the city, all the places of the city are likely to come under the grip of fear, thus dissuading peace loving citizens from exercising their right to vote and thereby it can be said that there was absence of free and fair polling in all the wards.

247. Even though in the first blush such submission may appear attractive, it cannot be countenanced, keeping in view the scope of opinion to be rendered by a third Judge in a reference arising under Clause 36 of the Letters Patent. A bare perusal of such provision makes it clear that whenever there is difference of opinion in the Division Bench, the matter is referred to a third Judge to deal with the difference of opinion. In the present case, Kalifulla, J has come to a conclusion that 99 wards out of total 155 had been affected by poll violence requiring fresh election in such 99 wards, whereas Mukhopadhaya, J seems to have come to a conclusion that the materials on record were not sufficient to come to any such conclusion. In such view of the matter, even if I come to the conclusion that there had been large scale rigging, booth capturing and poll related violence thereby preventing holding of free and fair election in other wards not specified in the judgment of Kalifulla, J, such opinion would not constitute the majority opinion, I am of the considered opinion that it is not within the scope of reference for me to travel beyond the difference of opinion between the two learned Judges. Therefore, I desist from making any effort to find out whether direction for re-election should be issued in respect of the wards not specified in the order of Kalifulla,J.

248. Learned counsels appearing for the respondents submitted that the conclusion of Kalifulla,J directing re-election in respect of 99 wards is not just and proper in the absence of sufficient materials on record.

They have tried to project that the materials in support of the allegations were vague and unacceptable. As already indicated in the introductory portion, after split verdict was given, 98 Councillors out of 99 wards have resigned and fresh election process has already commenced and polling has to take on 18.2.2007. In such a scenario, I do not think any useful purpose would be served by undertaking a futile exercise to find out whether the conclusions of Kalifulla, J in respect of those wards wherein fresh election is scheduled to take place are required to be considered. Even if I come to a different conclusion, no useful purpose would be achieved as fresh election has to take place in respect of those 98 wards irrespective of my conclusion. There is no purpose for undertaking such an exercise in futility.

249. Learned counsels appearing for the contesting respondents submitted that since such adverse findings are likely to affect the officers concerned, the matter should be re-examined to come to a proper conclusion.

250. The observations made by Kalifulla, J only highlight the fact that inspite of several complaints and allegations, effective steps were not taken by the police officials, namely, the Commissioner and the Inspector General (Elections) and similarly the Election Commissioner had not responded to the situation in the manner expected. Whether the poll related violence in an unprecedented scale had affected the election in the entire 155 wards or in some of the wards, I cannot, but agree with the observation that the Election Commissioner had not lived up to the role expected of him being a Constitutional functionary. Similarly, it cannot be said that the police officials had been able to control the situation to the expected level. However, it can be clarified that there was hardly any allegation against the Director General of Police in any of the writ petitions nor he had any direct role in maintaining law and order except as supervisory authority.

251. The last surviving question on this aspect relates to Ward No.53, in respect of which the successful candidate has not resigned. Such candidate belongs to B.S.P. It appears from the materials on record that a candidate belonging to DMK was also contesting in such ward. The allegations in all the writ petitions, were to the effect that the poll related violence had been orchestrated by DMK party. Except a bald allegation in the writ petitions, there is no other material to indicate that there had been any poll related violence in Ward No.53. If at all there was any allegation, such allegation was against DMK party and its candidates. In such peculiar circumstances, with respect I am unable to agree with the conclusion of Kalifulla, J regarding the direction relating to re-polling in Ward No.53.

252. A submission was made on behalf of the respondents that in the absence of all the candidates, and particularly the successful candidates, such election could not have been set aside in respect of all the wards. The decision of the Supreme Court in (2006)8 SCC 487 (Avtar Singh Hit vs. Delhi Sikh Gurudwara Management Committee) has been relied upon in support of the contention that in the absence of elected representatives, no such dispute should be decided. In my considered and humble opinion, the ratio of the said decision may not be applicable to the peculiar facts situation of the present case. All the writ petitions had been filed as public interest litigations. It is of course true that five of the writ petitions were filed by the political parties whose candidates were contesting in the election. However, other petitions had been filed either by the candidates or even citizens who cherish democratic value. A free and fair election has been held to be a basic principle of democracy and democracy is considered to be a basic structure of the Constitution. The purport of the petitions was to ensure free and fair poll. The duty was upon the Election Commission and other officials to ensure such free and fair poll. Such officials were before the Court. All the writ petitions had been filed at a stage when results were yet to be announced. These public interest litigations cannot be equated with election petitions under the statutory provisions, which require that all candidates should be impleaded. At the time when the petitions were filed counting had not begun. Subsequently when counting was permitted to be undertaken, it was specifically indicated that declaration of results would be subject to the decision in the writ petitions. In fact under a specific direction of the court, in the certificates in favour of the successful candidates, it has been so indicated. Therefore, all the successful candidates knew that their election as Councillors was in peril being subject to the result of the writ petitions. Keeping in view the peculiar nature of the case and the main purpose of filing the public interest litigations which was to ensure free and fair election, it cannot be said that in the absence of the candidates or even the successful candidates, the writ petitions were hit by the principle of non-joinder of necessary parties.

253. In view of the above, my conclusions are as follows:

(1) The Election Commission has jurisdiction and authority, nay the duty to direct re-polling in any or all the wards, if he comes to the conclusion on the basis of materials on record that there is no free and fair election and there has been large scale of booth capturing. Such action can be taken by the Election Commission not only on the basis of the reports submitted by various election officers, but also on other materials including the newspaper reports. (2) Any decision taken by the Election Commission is subject to the judicial review by the High Court, of course within the known parameters of such jurisdiction. However, the High Court is required to be very circumspect in such matters and interfere only in rarest of rare cases. Where the High Court comes to the conclusion that free and fair election has not been held and there is a mockery of democracy and the Election Commission has failed in its duty to protect democracy by ensuring free and fair election, the High Court can in order to protect the concept of democracy, interfere in such matters, even after the election process is over, notwithstanding the fact that alternative remedy may be available and notwithstanding the fact that some disputed questions are required to be decided. This again would obviously depend upon the facts and circumstances of each case and such jurisdiction is to be exercised in rarest of rare cases where the monstrosity of the situation so compels. (3) Since the Election Commission while dealing with such matters can depend upon newspaper reports, the High Court, while dealing with such matters arising from the decision of the Election Commission, can similarly place reliance upon the newspaper reports in conjunction with other materials on record.

(4) In the peculiar circumstances of this case, which have already been discussed, the contention that successful parties should have been impleaded in the writ petitions cannot be accepted.

(5) The submission made by the learned counsels for the petitioners that fresh election should be directed to be held in respect of other wards not included in the order of Kalifulla, J cannot be accepted and the election to 100 wards specified in Notification dated 29.1.2007 can be held on the scheduled date.

(6) In view of the conclusion regarding Ward No.53, there need not be fresh election in respect of such Ward No.53 and the certificate of election issued to him by the Election Commission need not be recalled.

All the writ petitions are accordingly disposed of. Consequently, the connected miscellaneous petitions are closed. There would be no order as to costs.

dpk

Sources: 


Also read the related Article

A Moment of Infamy for Tamilnadu Govt 

by V. Sundaram

Hon'ble Justice F M Ibrahim Kalifulla has delivered a historic judgement rendering substantive justice to the unmourned, unhung and unsung common man in Chennai by ordering fresh elections to 99 wards out of 155 wards and directing the State Election Commission (SEC) to recall election certificates issued to candidates elected from these wards. The matter has been referred to Hon'ble Chief Justice A P Shah for appropriate orders.

Through his judgement, Mr Justice Kalifulla has given cubic content to the immortal words of Justice Felix Frankfurter: 'Judges are not merely the habitations of bloodless categories of the law which pursue their pre-destined ends'. Instead of taking a sterile, bloodless and neutrally neutral view between good and evil, he has categorically declared: 'In a democratic set up holding of elections in a free and fair manner assumes great importance'. He has referred to the word of caution given by the Supreme Court of India to the effect that successful candidates who had resorted to foul methods should not be allowed to reap the benefits. 

He has also stated that he was convinced that 'there was an extreme and extraordinary situation', which warranted an extraordinary remedy in view of the magnitude of the situation. He has concluded that it would be wholly inappropriate if fresh elections were not ordered to a majority of the wards. By his verdict setting aside the civic elections in 99 wards out of 155 wards, Mr Justice Kalifulla has demonstrated that another great American Judge and Jurist Benjamin N Cardozo (1870-1938) was absolutely right when he stated: 'The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by'.

Mr Justice Kalifulla in his judgement has expressed concern that it is unfortunate that the State Election Commission did not raise even its little finger though an extraordinary situation was unfolding on 13 October, 2006, when the civic election to Chennai Corporation was being held. He has passed severe strictures against the State Election Authority. 

In his judgement he has declared that the stand and attitude of the State Election Commissioner (SEC) was 'highly irresponsible' and that he had 'miserably failed in the discharge of his function'. The law-abiding citizens of Chennai had a lurking suspicion right from the beginning that the State Election Commission needlessly functioned as a branch office of the DMK Party from the day on which the elections were notified. This suspicion has now been confirmed by the Judgement of Mr Justice Kalifulla.

Severely indicting the SEC's failure to give even the minimum details about the steps taken by him either to control rigging and booth capturing or restore normalcy to ensure the conduct of free and fair polls on 13 October, 2006, the Hon'ble Judge has said: 'to say the least, the stand of the SEC can only be construed as a highly irresponsible one and was not in the interest of protecting democracy. Instead, it can only be stated as an indifferent attitude displayed without realizing the responsibility reposed on him'.  

Ballot papers strewn all over at Vyasarpadi in Chennai on 13 October, 2006 (glibly ignored by the SEC)

In conclusion, Mr Justice Kalifulla said that the SEC had thoroughly failed to come up to the expectation and that he had displayed a totally indifferent attitude for reasons best known to him and thereby failed to ensure a free and fair poll. To quote his words once again: 'Every one of the incidents and details, besides the failure of the SEC to react to the situation, contributed to an extreme and extraordinary situation and it called for an extraordinary remedy. It will have to be held that there was no free and fair election on 13 October, 2006'.

The enlightened public in Chennai are fully aware of the fact that the SEC functioned only as a spokesman for the ruling DMK party and not as an impartial public election authority. All the complaints made to the SEC were either ignored or treated with contempt or were simply forwarded to the Commissioner of Police, who in turn showed no better perception than that shown by the SEC.

In regard to the complaints of snatching of ballot papers and rigging, the SEC had come forward with a simple categorical denial of the allegations and had stated that such incidents had been blown out of proportion. Mr Justice Kalifulla has wondered as to how the SEC could come forward with such a blatant denial.

Mr Justice Kalifulla has also criticized the Director General of Police and the Commissioner of Police for having taken the pre-meditated view that the violent and ugly incidents were only 'sporadic'. To quote the exact words of Mr Justice Kalifulla: 'I am constrained to state that such a stand taken by these police authorities was far from truth and did not reveal the correct state of affairs'. The High Court has come to the right conclusion that the police officials on par with the SEC failed in the performance of their statutory functions.

Soon after the civic elections, Union Panchayati Raj Minister Mani Shankar Aiyar had described as 'aberrations,' the difficulties faced in holding 'free and fair' panchayat elections in Tamilnadu. He pointed out that enquiries had been ordered into the incidents.

All the major English and vernacular newspapers in India had carried detailed reports and graphic pictures about the violent and ugly incidents that marred the Chennai Corporation Council elections. The SEC and the Tamilnadu Government treated these incidents as minor episodes which had taken place in a remote district in Central China or Iceland! All the newspapers had exposed in one ringing voice the massive rigging of elections on an unprecedented scale in Chennai City. It was reported that in a precisely planned operation, supporters and henchmen of the ruling Dravida Munnetra Kazhagam (DMK) drove out poll officers and party agents at knife point, captured polling booths and the ballot boxes with ballot papers and voted for their party candidates. Candidates of the rival All India Anna Dravida Munnetra Kazhagam (AIADMK) and Marumalarchi Dravida Munnetra Kazhagam (MDMK) or even an ally like the Communist Party of India (Marxist), who resisted, were assaulted. D. Pandian, State secretary of the CPI, called it 'a misguided adventure' while G Ramakrishnan, CPI(M) State secretariat member, described the incidents as 'a planned operation'.

In a strongly worded statement, N Varadarajan, State secretary of the CPI(M), called the incidents 'shocking' and charged that some DMK candidates and legislators led 'armed, professional rowdy groups' to capture polling booths. False cases under non-bailable offences were booked against CPI(M) district committee leaders like Devi. Complaints to SEC officials were of no avail.

There were widespread demonstrations by almost all political parties against the planned rigging of elections by the DMK Party. Cadres of the Communist Party of India (Marxist) staged a demonstration at Dindigul condemning the violence during local body elections in Chennai. They demanded stern action against those involved in it. K Balabarathi, MLA, said that the violence was a 'murder of democracy'. Though the CPI (M) was part of the Democratic Progressive Alliance, it would not tolerate such anti-democratic incidents. She described it as pre-planned violence and alleged that persons had been mobilized from different parts of the State to commit atrocities.

Against this known background, the historic judgement of Mr Justice Kalifullah comes as a great relief to the frustrated, innocent and law abiding voters of Chennai City. Reading the inspiring judgement of this great judge, I am reminded of another landmark judgement given by Chief Justice William Murray, Lord Mansfield in 1770 in England. In this judgement, he came out with the following inspiring words: 'I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the Press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow'.

(V.Sundaram, is a retired IAS Officer)

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