Judgment N.Pandey and B.P.Sharma JJ. 1. This petition under Article 226 of the Constitution is for an appropriate writ, quashing Notification No. 495/V.R.H.P.-35/96, contained in Memo No. 814 dated 9th May, 1996 and the other Notification No. 495/V.R.H.P.-35/96, contained in Memo No. 826 dated 10th May, 1996 (Annexure 1 and 2 respectively), whereby and whereunder, the Election Commission of India (respondent No. 1) in exercise of its power, conferred under Sec. 58A(2)(a) of the Representation of the People Act, 1951 (in short the Act), in spite of mass scale booth capturing and malpractices during the election of 35, Patna Parliamentary Constituency to the Lok Sabha, had ordered for repoll only at 700 booths, covering entire Danapur and Patna West Assembly Constituency, A prayer has also been made to command the said authority by a writ of mandamus or any other appropriate order or direction to discharge its statutory obligation, as contemplated under the aforesaid provision of the Act and countermand the entire, elections of the Patna Parliamentary Constituency and appoint another day and hours for fresh poll. 2. It is stated that by mere issuance of the impugned notification it is manifest that there was large scale of booth capturing and malpractices on the day of polling of this Constituency, which would definitely affect the result of the election. Therefore in such a situation it was obligatory on respondent No. 1 to countermand the entire election instead of only 700 booths. It is further stated that to the knowledge of the petitioner, authentic reports were furnished to respondent No. 1 regarding booths capturing, intimidation and threat to the voters and other nature of corrupt practices almost at all the booths of the Constituency, therefore, there could be no justification to select only few booths for repoll. 3. It is alleged that non-performance of statutory functions of respondent No. 1 strikes at the root of free and fair election, which is a basic feature of parliamentary democracy. In order to arouse faith of general public on the democratic pattern of the Government, free and fair elections to elect representatives are the bask requirements. 4. 3. It is alleged that non-performance of statutory functions of respondent No. 1 strikes at the root of free and fair election, which is a basic feature of parliamentary democracy. In order to arouse faith of general public on the democratic pattern of the Government, free and fair elections to elect representatives are the bask requirements. 4. There cannot be any dispute that the Parliament in its power under Article 327 of the Constitution while inserting the provisions, as contemplated under Sec. 58-A to Chapter IV of the Act, has vested the Election Commission with an extraordinary power to countermand entire election of a constituency in appropriate cases where large number of polling stations or places are involved in booth capturing and malpractices. As in the present case a prayer had been made a command respondent No. 1 to issue an appropriate notification countermanding the entire election of the constituency as also to fix a date and hours for repoll under exercise of its power under Sec. 58A(2)(a)(b) of the Act, it would be useful to notice relevant provisions hereunder: 58. A. Adjournment of poll or countermanding of election on the ground of booth capturing: XXX XX XXX (2) The Election Commission shall, on the receipt of a report from the returning officer under Sub-sec. (1) and after taking all material circumstances into account, either- (a) declare that the poll at the polling station or place be void, appoint a day, and fix the hours, for taking fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fir; or (b) if satisfied that in view of the large number of polling stations or places involved in booth capturing the result of the election is likely to be affected, of the that booth capturing had affected counting of votes in such a manner as to affect the result of the election, countermand the election in that constituency. From the aforesaid provision it is obvious that the Election Commission, if satisfied that large number of polling stations were involved in booth capturing and result of such events would affect the counting of votes and result of election, he can either declare poll; of such, stations void and appoint a day and hours for fresh poll of in appropriate cases countermand the entire election of the constituency the entire election of the constituency fixing a fresh date and hours for repoll. 5. Undisputedlly as per the notifications, contained in Annexures-1 and 2, respondent No. 1 had himself notified repoll at different polling stations in exercise of its power, conferred on it under the said provision. Therefore, it is obvious that respondent No. 1 was satisfied that with respect to such polling stations there was large scale of booth capturing and other irregularities. But according to the learned Counsel, in such a situation it was incumbent upon respondent No 1 to countermand the election of entire constituency and appoint another day and fix day and hours for fresh poll. 6. A grievance has also been made that although with regard to repoll of 53 booths at Patna Central segment, Patria, a notification was issued by respondent No. 1 on 9th May, 1996, fixing 10th May, 1996 for repoll, but unfortunately no intimation was given to the voters about the date and hour of repoll at such polling stations or even to the candidates. It is alleged that this was one of the glaring examples to show that the impugned decisions were taken by respondent No. 1 without application of mind and or applying the statutory requirements. 7. It is well known that Article 324 of the Constitution read with the provisions of Representation of the People Act specially Sec. 58-A have vested in Election Commission ail the powers of superintendence and control over such election regarding conduct of election. Therefore, if the Commission of is of the view that having regard to the disturbed condition of the constituency or part thereof, free and fair election was not conduct, he can order for repoll with respect to entire constituency or part thereof. 8. Mr. Prasad contended that the petitioner or any other citizen have no other forum to invoke the jurisdiction of the Election Commission to perform its statutory functions as enshrined under Sec. 58-A(2)(a) of the Act. 8. Mr. Prasad contended that the petitioner or any other citizen have no other forum to invoke the jurisdiction of the Election Commission to perform its statutory functions as enshrined under Sec. 58-A(2)(a) of the Act. Our attention was also drawn to Chapter III of the Act, which prescribes different provisions to conduct election petition challenging a particular election and the grounds on which an election can be declared void and set aside. He submitted that a bare reference to the provisions, as incorporated in Chapter III, would indicate that no relief can be claimed for countermand of the entire elections with a decision for repoll, as required under Sec. 58A of the Act. 9. A counter affidavit has been filed on behalf of the Election Commission, giving the details of such polling stations where steps were taken for repoll, notifying fresh date and hours for repoll. According to him, having regard to the reports of the returning officers about booth capturing and other disturbances at respective polling stations, decision was taken for repoll. But in absence of any such report that at all the polling stations of the constituency, there were instances of booth capturing, which may affect the result of the election, it was not possible to countermand the election of entire constituency. 10. Mr. Advocate General appearing for the Election Commission apart from the facts, as stated in the counter affidavit, has also submitted that view of the provisions of Article 329 of the Constitution and settled views of the Apex Court in the cases, namely -- N.P. Ponnuswawi V/s. The Returning Officer, Namakkal Contituency, Namakkal and Ors. -- ; Mohinder Singh Gill and Anr. V/s. The Chief Election Commissioner, New Delhi and Ors. A.I.R. S.C. 61, The Election Commission of India V/s. Shivaji and Ors. and A.I.R. 1985 S.C. 1233, Lakshmi Charan Sen and Ors. V/s. A.K.M. Hasan and Ors. it is well known that no election can be challenged save and except under the provisions of Representation of the People Act. It is stated that the law of election prescribes only one remedy by filling election petition under the instant Act. 11. and A.I.R. 1985 S.C. 1233, Lakshmi Charan Sen and Ors. V/s. A.K.M. Hasan and Ors. it is well known that no election can be challenged save and except under the provisions of Representation of the People Act. It is stated that the law of election prescribes only one remedy by filling election petition under the instant Act. 11. A bare reference to the provisions of Article 329 of the Constitution well as different authoritative pronouncements of the Apex Court, as noticed above, there cannot be any dispute that the jurisdiction of the High Court tinder Article 226 of the Constitution to examine the effect and validity of an election has been expressly excluded, therefore, any matter, which has the effect of vitiating an election can on brought up only at the appropriate stage in an appropriate manner before Special tribunal but cannot be brought at an intermediate stage before any court. 12. Mr. Prasad, however, contended that in the present case no prayer has been made to set aside or cancel election of any returned candidate. Chapters II and III of the Act prescribe different provisions to challenge election of a returned candidate for various reasons. Therefore, even in case of success of an election petition at best the result of the returned candidate can be declared void and illegal. But no decision can be taken by the Election Tribunal or the High Court to countermand entire election as contemplated under Sec. 58A of the Act. He contended that none of the decisions, relied upon on behalf of the respondents, had taken note of the provisions of Sec. 58A of the Act. Therefore, in appropriate cases where the Election Commission has failed to perform its statutory functions, the Court should in exercise of the power under Article 226 and/or 32 of the Constitution, ensure that functions of such authority are performed in accordance with law. Reliance in this regard was made to decision of the Apex Court in the case of Digvijay Mote V/s. Union of India and Ors. -- . It would be useful to notice the relevant passage of the said report in these words: However, it has to be stated this power is not unbridled. Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights. -- . It would be useful to notice the relevant passage of the said report in these words: However, it has to be stated this power is not unbridled. Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights. We may, at this stage, usefully quote Judicial Remedies in Public Law-Clive Lewis, page 70.: The term public law has in the past, been used in atleast two senses. First, it may refer to the substantive principles of public law governing the exercise of public law powers/and which form the grounds for alleging that a public body is acting unlawfully. These are the familiar Wednesbury principles. A public law right in this sense could be described as right to ensure that a public body acts lawfully in exercising its public law powers. The rights could be described in relation to the individual heads of challenge, for example, the right to ensure that natural justice is observed, or to ensure that the decisions based on relevant not irrelevant considerations, or is taken for a purpose authorised by statute, or is not Wednesbury, unreasonable. Secondly public law may refer to the remedies that an individual may obtain to negative an unlawful exercise of power. These are essentially remedies used to set aside unlawful decisions, or prevent the doing of unlawful acts, or compel the performance of public duties. These remedies now include the prerogative remedies certiorari, mandamus and prohibition, and the ordinary remedies of declarations and injunctions when used for a public law purpose involving the supervisory jurisdiction of the courts over public bodies. 13. In the case of Election Commission of India V/s. Union of India and Ors. 1995 Supp (3) S.C.C. 643 also it was held that over all constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority, is that of the Courts. 13. In the case of Election Commission of India V/s. Union of India and Ors. 1995 Supp (3) S.C.C. 643 also it was held that over all constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority, is that of the Courts. It would be advisable to quote the relevant findings in extenso; While we reiterate the judicial perception as to the Constitution position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not be interfered with by the courts/we must also indicate that there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2.8.1993 is justifiable on that principle of judicial review is eminently arguable. But one thing seems clear: the jurisdiction of courts would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process.... 14. Thus, from a bare reference to the aforesaid decisions there cannot be any dispute the conduct of election is in the hands of Election Commission, which has the power of superintendence, direction and control of elections, vested In it as per Article 324 of the Constitution. If the Election Commission is of the opinion that having regard to the disturbed conditions or instances of large number of booth capturing at different polling stations, free and fair election was not held, he can countermand election of entire constituency or part thereof, Therefore, no Court should direct such authority to countermand the election of particular constituency and fix a date for repoll. But it cannot be ignored that in appropriate, cases to ensure constitutional functions, assigned to such authority, judicial review will be permissible over its functions affecting public law rights. 15. In the instant case facts are completely different. But it cannot be ignored that in appropriate, cases to ensure constitutional functions, assigned to such authority, judicial review will be permissible over its functions affecting public law rights. 15. In the instant case facts are completely different. Admittedly the Election Commission had discharged its statutory obligation while notifying repolls against certain booths. Learned Counsel, however, while referring to the impugned notifications requested us to draw inference that similar irregularities were also committed at other polling stations, where repoll should have been ordered. On the hand, on behalf of the Respondent Commission specific stands has been taken in the counter affidavit that order for repoll was issued with respect to such polling stations where as per the report of the returning officer, incidents of booth capturing and malpractices were notices Therefore, having regard to such a disputed fact as also the previsions of Sec. 58A of the Act, it would be different for this Court while exercising a writ jurisdiction to interfere with the impugned notifications or to direct the respondent Commission to countermand the election of the entire constituency. 16. In the result, subject to the findings regarding jurisdiction of the Courts, to tile extent a judicial review is permissible, the writ application is, thus disposed of with a liberty to the petitioner to raise all such question before the Election Tribunal, if any.